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An oil worker has won a huge unfair dismissal payout after the Fair Work Commission found his employer’s investigation into his misconduct was several flawed. This case goes to show that even if a workplace investigation finds that you were in the wrong, it doesn’t mean its verdict is true.
Sometimes, like in this case, your employer might rely on subjective witness testimony and fail to substantiate allegations. They can also deny you procedural fairness during an investigation – like, for instance, not giving you the chance to tell your side of the story.
That’s why, if you feel you have been subjected to a flawed investigation, it’s worth challenging your dismissal at the Fair Work Commission.
In this article, we look at the events of this unfair dismissal case – Travis Cairns v Oceaneering Australia Pty Ltd [2024]. We also explore another recent case involving three employees who were dismissed via a flawed investigation.
Oil worker unfairly dismissed for allegedly outing non-union members
Travis Carins began working for Oceaneering Australia as an advanced non-destructive diving technician in October 2017. He was a fly-in fly-out (FIFO) worker and was tasked with assessing the structural integrity of industrial equipment. He worked on the platforms of global oil giant Esso in the Bass Straight between mainland Australia and Tasmania.
Mr Carins was a delegate of the Australian Manufacturing Workers’ Union. As part of his role, in April 2023, he created a WhatsApp group to communicate with colleagues during bargaining for a new workplace agreement. Within the group, Mr Cairns shared a spreadsheet he had compiled. This included a list of employees’ names, their union membership status and their phone numbers.
Some workers had blank spaces next to their names in the spreadsheet, particularly in the columns for ‘Membership’ and ‘Phone’. The spreadsheet was meant to track union density within the workplace.
Group WhatsApp message lands worker in hot water
The key event of this unfair dismissal case was when Mr Cairns shared a message in the group on 5 October 2023. In the message, he celebrated that his shift, Shift 2, had achieved 100% union membership. The message included a screenshot of the spreadsheet. It showed the ‘Yes’ responses under the ‘Membership’ column for each employee, along with a celebratory emoji.
The message was eventually seen by two Shift 1 workers who were not part of the WhatsApp group. Around six weeks after the message was sent, they complained to Oceaneering that the message revealed their union membership status. They said that this could lead to discrimination or targeting from co-workers.
The company subsequently launched an investigation into Mr Cairns’ actions, enlisting the Australian Resources and Energy Employer Association to conduct the inquiry.
The investigation findings
The investigation found that Mr Cairns had disclosed personal information without proper authorisation. It found that this disclosure could potentially expose non-union employees to targeted harassment. The investigation also suggested that Mr Cairns’ actions had created a hostile work environment for non-union members.
He was subsequently issued a show cause letter, which included an additional allegation that his actions had led to the humiliation and intimidation of coworkers. But in March 2024, Oceaneering summarily dismissed Mr Cairns for serious misconduct.
The company cited violations of several company policies by sharing personal and confidential information in the WhatsApp group. He subsequently lodged an unfair dismissal claim with the Fair Work Commission.
Fair Work Commission decides in favour of worker
At Mr Cairns’ unfair dismissal hearing, the Fair Work Commission took issue with several findings of Oceaneering’s investigation.
It found that the company had failed to substantiate its allegations against him. The commission rejected the company’s argument that the publication of the spreadsheet amounted to a breach of confidentiality or personal privacy.
It was noted that while the spreadsheet included blank cells under the ‘Membership’ and ‘Phone’ columns, there was no clear indication that those employees were non-members. The commission said that the logical conclusion from the spreadsheet was that any blank cell meant that the membership status or phone number was unknown. It said that it did not mean the employee was not a union member.
“There is simply nothing in the table, read in context, to suggest that the necessary conclusion must be that the person is not a member of the union,” the Fair Work Commission said.
‘Subjective and not entirely logical’: Fair Work slams witnesses’ testimony
Oceaneering’s argument rested largely on the testimony of two employees, referred to as “Alpha” and “Omega” in the Fair Work Commission hearing. These two witnesses claimed that they felt marginalised after seeing their union membership status shared in the spreadsheet.
The Fair Work Commission labelled the testimony of complainants Alpha and Omega as “subjective and not entirely logical” and that said they “should not prevail.” It said that their testimony “coloured [Oceaneering’s] objectivity.”
It was found that neither employee provided direct evidence that they had been ostracised or targeted by their co-workers because of the shared spreadsheet. Instead, Alpha admitted that their concerns were based on past experiences rather than any immediate mistreatment. Meanwhile, Omega did not claim to have experienced any adverse treatment.
“Witness Alpha and Omega had subjective feelings, and they had concerns,” the Fair Work Commission said. “But none of them came to fruition. The publication did not have the ‘effect’ of targeting them in any way.”
Investigation report was flawed
The Fair Work Commission noted that the investigation report compiled by the Australian Resources and Energy Employer Association lacked evidence for key claims. Specifically, that Mr Cairns’ WhatsApp message celebrating the union membership of his Shift 1 colleagues caused “harassment/marginalisation” of non-union workers.
It was found that this claim was “not substantiated.” The commission noted that “how the conclusion of substantiation was reached by the investigator is a mystery.”
“No evidence of harassment was presented to the [Mr Carins] at any time during the investigation,” the Fair Work Commission said.
Worker wins huge unfair dismissal payout
Given none of the allegations against Mr Cairns had been proven, the Fair Work Commission ruled that “there was no valid reason for the dismissal.” It noted that it was “concerning” that such a large organisation as Oceaneering “could so badly have conducted an investigation and made such erroneous findings.”
The Fair Work Commission therefore ordered the company to pay Mr Cairns the maximum compensation allowable under Australian employment law, amounting to $83,750.
TAFE employees fired following unfair workplace investigation
Another recent Fair Work Commission case that involved a botched workplace investigation is Kildey and Ors v Technical and Further Education Commission [2024]. There were three applicants involved in this unfair dismissal case – Jason Kildey, Sharon Kerr and Norman Browne. All three worked at TAFE NSW. Ms Kerr and Mr Browne were in a de facto relationship, and Mr Kildey was Ms Kerr’s nephew.
The case revolved around TAFE’s allegations that the three were involved in conflicts of interest. The allegation stemmed from a complaint lodged in February 2021. In the complaint, Mr Browne was accused of improperly recruiting and managing Mr Kildey for a role at TAFE. The role involved teaching plumbing, which it was alleged that he was qualified to do.
TAFE subsequently made inquiries into the complaint, which resulting in further allegations. This included that Ms Kerr had improperly helped facilitate the recruitment of Mr Kildey’s former partner as well as Mr Browne’s daughter to positions at TAFE.
TAFE breached its own policy, kept employees in the dark
In April 2021, TAFE contracted a third party to conduct a workplace investigation into the allegations. The three applications weren’t notified of this nor of the allegations against them until September 2021.
It was then that the trio were placed on suspension and the workplace investigation commenced. TAFE, as per its own policies, was obligated to conduct a risk assessment prior to suspending the trio. However, the organisation failed to do so. It also did not provide an explanation as to why they could not continue working.
TAFE launched delayed workplace investigation
The trio were allowed to provide their initial responses to the allegations in October 2021. The investigation then proceeded until August 2022, during which time multiple witnesses were interviewed. However, the applicants were not interviewed at all as part of the investigation. They were also not kept in the loop about the progress of the investigation.
The workplace investigation was completed in September 2022. It concluded that each of the three employees had not completed a conflict of interest form. They were required to fill out this form to declare their personal relationships, and to reconcile this with TAFE’s recruitment, hiring and management practices.
The trio were asked to take part in a show cause process in October 2022. It was then that they requested the investigation report, which was provided in redacted form. This was to ensure the identities of witnesses weren’t revealed.
The applicants were dismissed in June 2023, more than two years after the investigation had begun. They subsequently lodged unfair dismissal claims with the Fair Work Commission.
Fair Work Commission’s decision
At the unfair dismissal hearing, the Fair Work commission concluded that there was no need for Mr Kildey to declare a conflict of interest. This was because he was not a TAFE employee at the time of his hiring.
Regarding Mr Browne, the commission found that his failure to declare a conflict of interest was not improper. This was because he had recruited Mr Kildey for a short-term role to meet a business need and his manager knew about the familial relationship.
The case of Ms Kerr was more complicated. While she had failed to declare her relationship with Mr Browne, the commission found that her involvement in the recruitment of Mr Kildey’s former partner and Mr Browne’s daughter occurred under exceptional circumstances.
Both recruits were qualified for the roles they filled, and the recruitment took place during the COVID-19 pandemic. It was noted that the recruitment had been necessary to address urgent staffing shortages, and found that Ms Kerr’s actions, though in error, were not dishonest or corrupt.
Severe issues with workplace investigation found
A key finding of the Fair Work Commission in this unfair dismissal case was the serious faults with the workplace investigation conducted by TAFE. Chiefly, that the applicants had been deprived of an opportunity to respond to the allegations and defend themselves. The commission also called out TAFE for failing to interview the applicants as part of the investigation.
TAFE was also criticised for not providing them with updates about the investigation’s progress. It was deemed this lack of communication further eroded the fairness of the process. This was because it left the applicants in the dark for long periods without knowing the status of the investigation.
TAFE called out for protracted investigation
It was also noted that the investigation took place over a protracted period. TAFE’s internal policies required that investigations be completed within 18 weeks. However, this investigation lasted 18 months, delaying the process and leading to unnecessary uncertainty for the applicants.
The Fair Work Commission also took issue with the fact that the applicants had been suspended without TAFE conducting a risk assessment. This failure violated its own policies.
Given these findings, the commission ruled that the applicants had been unfairly dismissed. It subsequently ordered TAFE to reinstate them to their positions and pay them lost wages.
Have you faced an unfair investigation?
These recent Fair Work Commission cases demonstrate that employers can often get the facts wrong. Also, they can cut corners or fail to follow the law, sometimes without realising it, resulting in an unfair investigation.
If this has happened to you, give our team a call today. We are Australia’s leading workplace mediators and can help you understand if you have a legitimate unfair dismissal claim to make.
Why speak to us? We’ve assisted over 16,000 Australians across all states and territories to take action through the Fair Work Commission. We offer a no win, no fee service – and your initial consultation with us is free.
Call us today on 1300 766 700 to take the first step toward holding your employer accountable.
