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Norman Waterhouse

Non-disclosure of CCTV footage leads to “procedurally disastrous” dismissal of bottle shop employee

In the recent decision of David Bridge v Globe Bottleshops T/A Wellington Beer Wine and Spirits [2021] FWC 3153, the Fair Work Commission (the Commission) found the dismissal of Mr David Bridge, a bottle shop manager, unfair due to a lack of procedural fairness. While the reason for the termination of his employment was determined to be valid, the decision to withhold CCTV footage discovered in the investigation process ultimately impeded the employee’s ability to sufficiently respond to allegations of misconduct.

Facts

David Bridge was employed by Globe Bottleshops Pty Ltd T/A Wellington Beer Wine and Spirits (Globe Bottleshops) from August 2015 as a full-time manager. On 15 March 2021, Globe Bottleshops received notification of a complaint made by a female customer alleging that she had been sexually harassed by Mr Bridge whilst attending the store. The allegation was that Mr Bridge said “would you like a root hehehe receipt” and laughed and leered at the customer in an attempt to make her feel uncomfortable. Subsequently, Mr Bridge was suspended immediately pending the outcome of an investigation into the complaint.

Mr Bridge responded to the allegation advising that he was stunned by the unsubstantiated and anonymous complaint. Globe Bottleshops found that this initial response was inadequate and provided Mr Bridge with a further 48-hours to respond. Mr Bridge was not provided with any additional information as to the identity of the customer, what was purchased and was unable to add anything further to his initial response which was that the incident did not occur.

Globe Bottleshops’ investigation included interviewing the complainant and reviewing CCTV footage of the alleged incident. The CCTV footage was not provided to Mr Bridge as Globe Bottleshops did not want to disclose the identity of the customer, at her request. Mr Bridge argued that as an employee who dealt with hundreds of customers each day, the disclosure of the CCTV footage was necessary to enable him to place the events of the complaint and sufficiently respond to the allegations against him.

On 19 March 2021, following the finalisation of the investigation, Mr Bridge was advised that he had breached his duty of care obligations and his employment was terminated for serious misconduct effective immediately. Globe Bottleshops submitted that the incident was an example of a repeated pattern of inappropriate behaviour throughout the course of Mr Bridge’s employment and that they could no longer provide a safe premises for customers while Mr Bridge was employed.

Mr Bridge subsequently filed an unfair dismissal application with the Commission on the basis that the investigation process lacked procedural fairness.

Decision

Mr Bridge submitted that he was not afforded due process and the chance to clear his name because he had not been allowed to review the CCTV footage in an effort to recognise the complainant and attempt to jog his memory of the incident. Mr Bridge’s evidence was that the alleged misconduct did not occur and he was not provided any evidence to support the allegation of sexual harassment against him.

At the trial, Mr Bridge presented a number of online reviews submitted by customers which described him as an unforgettable character who brought a good sense of fun and humour to the store. It was evident that Mr Bridge took pride in the fact he was humorous and thought his conduct was acceptable because he was not trying to cause offence or harm. The Commission described this evidence as providing an insight as to how Mr Bridge conducted himself in the workplace.

The Commission stated:

“Whilst I accept Mr Bridge meant no harm or malice and he may have thought he was being funny; the issue is not whether Mr Bridge meant to cause harm, the fact is he continued to offend customers, including [the complainant], and his conduct caused [the complainant] to feel offended and intimidated. That was unacceptable.”

The Commission found that there was a valid reason for termination. However, the Commission went on to describe the dismissal of Mr Bridge as “nothing less than procedurally disastrous”. Globe Bottleshops had acted quickly to dismiss Mr Bridge without affording him a reasonable opportunity to reply to the allegations, Mr Bridge was never interviewed as part of the investigation and there was no evidence before the Commission that a proper investigation had been carried out.

Mr Bridge was not provided relevant information such as the complainant details, the CCTV footage or what the customer had purchased and accordingly he was unable to adequately respond to the allegations. Globe Bottleshops submitted that the CCTV footage was withheld from Mr Bridge to protect the complainant’s identity. However, in doing so, Mr Bridge was not afforded the opportunity to review the events of the complaint and subsequently provide an informed response to the allegation.

The Commission concluded that the dismissal was unfair due to the lack of procedural fairness afforded to Mr Bridge. However, due to the nature of his misconduct and the unlikelihood of the continuation of his employment with Globe Bottleshops, he was awarded $3000.00 in compensation for the dismissal.

Take Home Messages

This decision serves as a reminder to employers of the importance of disclosing relevant evidence when presenting allegations of misconduct. Employees must be provided sufficient information and time to respond to allegations of misconduct to ensure they are afforded procedural fairness when carrying out an investigation procedure. In circumstances where evidence (such as CCTV footage) is critical in enabling the employee to adequately respond to an allegation of misconduct, it may be necessary to disclose.

For more information in relation to this article please contact Sathish Dasan on +61 8 8210 1253 or sdasan@normans.com.au or Ganesh Krishnan on +61 8217 1395 or gkrishnan@normans.com.au.

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