Case Study 1: David Bridge v Globe Bottle shops Pty Ltd T/A Wellington Beer Wine and Spirits [2021] FWC 3153

David Bridge FWC

Introduction

Workplace investigations are important to the integrity of any business. Regardless of the outcome, every employee has the workplace right to procedural fairness when being investigated. Meaning the employee is notified of the investigation, given time to respond, and their answers are genuinely considered. Otherwise, it is common for issues surrounding unfair dismissals to arise. As we will read in the following case study.  

Facts

A manager of a bottle shop, Mr David Bridge, who had been employed at the store for 4 years, was accused of sexual harassment by a customer during their interaction at the cash register. On 15 March 2021, the customer filed a complaint accusing Mr Bridge of asking her ‘would you like a root hehehe receipt’, while looming over her and making her uncomfortable in the process. Such in cases where there are serious allegations, the bottle shop stood down Mr Bridge with pay until the conclusion of the investigation. Mr Bridge was allowed until 9am, 17 March 2021, to provide a response. Mr Bridge denied the allegations. The bottle shop wanted more information and allowed Mr Bridge an additional two days to respond after telling him the date and time of the incident but no further information. Mr Bridge was allowed until 12pm, 19 March 2021, to respond. However, at this time Mr Bridge was denied the opportunity to view the CCTV footage in order to recollect his memories. Furthermore, Mr Bridge tried to schedule an appointment with his general practitioner to acquire a medical certificate and grant more time to accommodate his anxiety. Unfortunately, the next appointment was not until 22 March 2021, after the response due date.

The morning of 19 March 2021, Mr Bridge complained that he was unable to provide a response due to the lack of procedural fairness. If procedural fairness was adhered to then the bottle shop would have allowed additional time for Mr Bridge to review the CCTV footage and acquire his medical certificate. In order to comply with the requirement of allowing the employee a reasonable opportunity to respond now that the circumstances have changed.

Mr Bridge was emailed later that day to notify him that the investigation had concluded, and he was terminated effective immediately. On 26 March 2021, Mr Bridge lodged an unfair dismissal application (F2 Application) to the Fair Work Commision (FWC).

Other Considerations

Mr Bridge put forward a compelling argument and brought to light a few factors that the FWC would take into consideration during their decision making.

  • Mr Bridge throughout the entirety of his tenure had never received a formal or informal warning. Especially warnings that consist of sexual harassment or intimidation.
  • During his tenure Ms Bridge had served over 250,000 customers ‘without any suggestion of sexual harassment, serious misconduct, or intimidation of female customers’.
  • During a single day Mr Bridge would serve over 200 people. Therefore, a single time and date would not be enough information to recall a single customer.
  • He was one of the sole employees who kept the store profitable during Covid-19 lockdowns.

Issue 

The FWC had found multiple factors and issues with the investigation process that proves that the bottle shop did not adhere to procedural fairness during their investigation.

  • The bottle shop asked Mr Bridge to provide a written response and yet refused to provide any additional information or aid, such as the CCTV footage, to help his response.
  • Furthermore, it was found that the bottle shop had interviewed the customer who complained multiple times in order to collect her side of the story. But failed to interview Mr Bridge.
  • Mr Bridge was not provided with the identity of the customer who complained.
  • The bottle shop was informed that Mr Bridge was trying to acquire a medical certificate and did not allow for additional time or consideration of the fact.
  • The bottle shop did not provide Mr Bridge a copy of the investigation findings prior to being terminated.
  • The Bottle shop did not follow the show cause procedure. Which would have allowed Mr Bridge an opportunity to explain his version of the story, as well provide the bottle shop an opportunity to support their findings.

Outcome 

The FWC had found that on the balance of probability it is likely that Mr Bridge had offended and intimidated the customer. Even if it was not out of malice, but to provide a joke.  However, Mr Bridge’s actions was overshadowed by the FWC finding that ‘Mr Bridge was not provided with any form of procedural fairness’. The bottle shop should have provided more information in order for Mr Bridge to make a succinct response. Additionally, it was decided that the bottle shop had decided to terminate Mr Bridge prior to the outcome of the investigation. The final decision was that Mr Bridges termination did constitute unfair dismissal.

Remedy

Mr Bridge was awarded two weeks’ worth of wages that equaled $3,000.

Discussion

This case highlights the importance of procedural fairness when conducting workplace investigations. Even though Mr Bridge was found likely to have committed the allegation, which likely would have led to his termination without issue if the correct procedure was followed. The bottle shop still had to complete their due diligence and had to pay the price for their mistakes. The key takeaway is to always provide all information about the relevant incident in order for the employee to make a reasonable response. And allow for enough time to be given an opportunity to respond. The fact that Mr Bridge’s conduct was eventually found to be inappropriate would have been a prominent factor when the final payout was being considered. If Mr Bridge‘s actions were not found likely (on the balance of probabilities) then he would have been awarded a much higher settlement sum.