Case study 5: Peter Angelakos v Coles Supermarkets Aust Pty Ltd T/A Coles Supermarkets [2019] FWC 29

Melbourne airport FWC

Introduction

While there is a history of employers not complying with their legal obligation to provide procedural fairness during workplace investigations, there are also circumstances where employees expect too much from an investigation. For the best outcome both parties should be aware of what is required in an investigation with no expectation with anything more or less. The following case is an example where an employee did not do their due diligence and expected more from the employer than what they had to provide.

Facts

Mr Peter Angelakos has been working at the Coles Hurstville Station and Moranbah location for an cumulative 8 years. An investigation on Mr Angelakos was initiated when two younger female employees had complained of Mr Angelakos acting inappropriately towards them. Ms Angelakos was 52 at the time, where the female employees were 17 and 23. This sparks a sequence of events of employees coming forward to complain. In the end there were 8 employees who had raised issues with Mr Angelakos. Totalling 39 formal accusations.

Mr Angelakos was stood down immediately pending further investigation. Afterwards he was called to inform him of the investigation process, ask about his wellbeing, and encourage him to access Coles’ Employee Assistance Program. A meeting was organised on the 23 February 2018 to discuss the allegations. Mr Angelakos refused to discuss the allegations and asked if he could respond at a later date so that he could acquire legal advice. The request was approved. Mr Angelakos provided his written response to the first 11 allegations on 1 March 2018. The rest of the allegations were responded to the following day.

The investigation outcome was decided and communicated to Mr Angelakos on 8 March 2018. The outcome meeting was held 9 March 2018. Mr Anselakos was terminated for his breach of Coles Code and EO Policy as 19 of 39 allegations were substantiated. And a further 14 were substantiated on the balance of probabilities. Mr Angelakos filed for an Unfair Dismissal claim (F2 Application) to the Fair Work Commission (FWC).

Hearing

During the hearing process it was noted that Mr Angelakos did not actually provide a copy of his written statement or outlined his submissions even though it was requested of him. Evidence was extrapolated from the original F2 application. Posing issues when it came to cross-examining.

Furthermore, it was found that Mr Angelakos did not start to compile his written response until 1 March when he was able to acquire legal advice. Despite HR emailing him prior to 1 March to try and get a response earlier due to the severity of the allegations. When HR called Mr Angelakos to discuss his response he admitted that he did not have enough time to write a genuine response and would have needed an additional few days to have a fair chance at responding. Moreover, it was stated that Mr Angelakos would become increasingly more aggressive as the investigation continued.

The allegations of sexual harassment and innappropriate behaviours include incidents such as:

  • Touching a female employee on the small of her back, shoulder, or arm.
  • Standing too close and invading personal space.
  • Using a threatening demeanour on a female employee who called Mr Angelakos to service.
  • Generally using his managerial title to threaten the employees to work.
  • Targeting or picking on employees.
  • Mr Angelakos called an employee ‘rude’ after she did not say hello.
  • Staring at an employee while she shopped with her boyfriend.
  • Offer flowers, become Facebook friends, and discuss non-work related issues.

Issue

Commissioner Hunt who was deciding on the matter had to consider a few factors as he was deliberating on the facts. Firstly, on the balance of probabilities is it likely that Mr Angelakos had sexually harassed and made inappropriate comments to the 8 employees. This is where evidence, and the ability to produce evidence, is critical to the outcome of a claim. Secondly, Commissioner Hunt had to decide whether procedural fairness was adhered to when Mr Angelakos claimed he did not have enough time to write his written responses.

Outcome

Mr Angelakos’s termination was found to not be harsh, unjust, or unreasonable. It was decided that there was a valid reason for dismissal as there were at least two serious matters within the 39 allegations that alone constituted a valid reason. Not all the allegations were substantiated but there was enough evidence to prove on the balance of probabilities that most allegations were true. The following criteria of a fair dismissal were also satisfied. Mr Angelakos was notified of the reason he was dismissed, and was allowed a support person, Coles’s company size did not impact the dismissal.  

Some relevant other matters generally worked against Mr Angelakos’s favour. Including the sheer number of allegations from multiple employees, the newness of some critical complaints, and he had received warnings prior to the investigation.

Importantly Commissioner Hunt decided that Mr Angelakos did have an opportunity to respond to the allegations despite arguing that he didn’t. Considering he was on paid suspension it was reasonable to assume that he should have started compiling his response from the 23 February 2018. The day he was stood down. Rather than the first day he received legal advice, a week later. Furthermore, even if Mr Angelakos was allowed a few extra days to write his response, it is reasonable to assume the outcome would have been the exact same.

Remedy

As the dismissal was not considered harsh, unjust or unreasonable there was no remedy to provide and the claim was dismissed.

Discussion

This case perfectly demonstrates the fact that employers are legally bound to provide a procedurally fair and unbiased investigation. However, that does not mean they must go above and beyond what is the bare minimum legal requirement. Most non-toxic workplaces will cooperate and allow for leniency depending on the allegations. But that is a luxury provided by the business. This case exemplified how a company must provide an opportunity to respond, but that does not mean it has to be the most ideal opportunity.