Keiko Adachi v Qantas Airways Limited 12 Feb 2014.  FWC 518.
If you don’t want your investigation failing because you’ve stumbled into the sticky trap of “investigator bias”, take note of these lessons from Qantas in a ruling by the Fair Work Commission early this month.
The FWC found in favour of the aggrieved stewardess, Keiko Adachi and declared that her dismissal by Qantas for gross misconduct was “harsh, unjust and unreasonable”.
An apparently simple altercation between Ms Adachi and her line manager over her “fitness to fly”, led to her dismissal for gross misconduct, just weeks before she would obtain her award for 25 years’ service.
Prior to the incident, which took place in February 2013, Ms Adachi had made complaints of bullying about her manager (the details were not included in the judgment) and had signed off sick for work-related stress.
On her return to work, her doctor issued a medical certificate declaring she was fit for flying duties, but not fit for ground duties. When Ms Adachi reported for a flight on the 17 February 2013, she presented the medical certificate and said she was “fit to fly”. However the certificate stated that she was only fit for “suitable duties” and not “full duties”, which is a stipulation of the Qantas “return to work” policy.
Her manager, John El Khoury, said she could not fly that night, and would need to get a new certificate. Ms Adachi asked for the certificate back, but her request was refused. So Adachi took the certificate off the table and in the ensuing tussle between her and her manager, the certificate was ripped and scrunched.
Immediately afterwards, Ms Adachi reported the incident to the police, while the manager reported it to his supervisor. Qantas appointed a more senior manager to investigate the complaint lodged by Mr El Khoury. He found that Ms Adachi’s conduct had breached the Qantas code and warranted her dismissal.
The FWC criticised the investigation, stating it was “flawed” because the investigator had a close working relationship with Mr El Khoury and was unable to view his account of the incident as anything other than highly credible.
As you would expect, the versions provided by the two key participants were divergent; both admitted to a tussle over the certificate but disagreed who initiated it and who was responsible.
The investigator needed further evidence provided by other witnesses to corroborate events.
The first witness stated in an email that he saw the tussle and supported the complaint of Mr El Khoury. But when the gravity of the situation was explained, he changed his evidence, stating he had not seen or heard what he initially claimed.
The investigator then sought evidence from another 12 witnesses, none of whom could provide any evidence that supported Mr El Khoury’s version. Despite this, the investigator showed a clear preference for Mr El Khoury’s evidence, discounting the evidence of the retracted witness and the other 12 employees.
This situation is commonly referred to as “investigator bias” .
So what can we learn from this case? If you are an internal investigator; how do you stop yourself from forming a view based on your knowledge or opinion of one of the witnesses?
The answer is that it is very hard. In many institutions and businesses, internal investigators have offices in separate locations in company headquarters, and choose not to socialise extensively with the rest of the employees they are tasked to oversee.
Secondly, it is not necessary to interview all witnesses, but it is vital that the investigator canvass a fair distribution of witnesses to provide him/ her with a rounded view of events.
Despite the need for investigations to be conducted without delay, they should not be rushed – rushing people to respond when they may be on stress-related leave or when the investigator is not fully prepared, can lead to lack of procedural fairness.
When evidence is withdrawn, it is also vital that a full explanation is provided, so that the investigator can assess the real, underlying cause of the retraction; was the witness mistaken or were they targeted?
Finally, in this case, the investigator failed to identify the complex nature of the IR landscape by contacting a worker whilst on stress leave for bullying, failing to consider prior complaints of bullying lodged by the worker against her managers, the impact of a WorkCover investigation, and a police investigation and a perceived lack of procedural fairness provided to the respondent.
The case highlights:
- The risks involved in using untrained internal staff to conduct investigations that may result in dismissal proceedings.
Organisations should consider using qualified investigators to gather and analyse the evidence prior to making decision about disciplinary action. Where you use an external contractor always check that they have the necessary license and insurance.