When An Incomplete Investigation Makes A Disciplinary Outcome Unfair

A recent Full Bench decision of the Fair Work Commission is a timely reminder that the quality of a workplace investigation can determine whether a disciplinary dismissal will stand.

In OS MCAP Pty Ltd v Karl Mouat [2026] FWCFB 259, the Full Bench upheld an earlier finding that an employee had been unfairly dismissed after allegations that he had behaved aggressively and intimidatingly towards a colleague. The employee denied that characterisation of his conduct.

The issue was not simply whether the employer got the facts wrong. It was that important evidence never made it to the person deciding whether the employee should be dismissed from his job.

What Happened

The employer alleged that the employee had acted aggressively towards a colleague, including claims involving clenched fists, a raised voice and standing over the colleague. The employee rejected that version of events.

During the investigation, there was information from three witnesses about one of the alleged incidents that did not support the recommendation to dismiss. But those accounts were not put before the decision-maker. In one case, a witness had told a company representative what he saw and yet was never asked to provide a formal statement. Other relevant statements were not obtained or provided to the employee.

At first instance, the Commission found that failing to put those witness statements before the decision-maker was a procedural failure. It also meant the employee did not have the opportunity to have those alternative accounts considered as part of the process.

What the Full Bench Said 

On appeal, the Full Bench considered whether the employee had a genuine opportunity to respond, and whether the employer had made a rational and fair decision when eyewitness material had not been obtained or given to either the decision-maker or the employee. 

In finding that the dismissal had been unfair, the Full Bench explained that an employee can be denied a fair opportunity to respond in two ways:

• The reason for dismissal is not put clearly enough for them to properly answer it; or
• There is material that would have helped their response, but it was not considered or made available.

In this case, the decision-maker did not know one witness’s account and did not consider the accounts of two others. All three were unfavourable to the employer.

Relevantly, the Full Bench also pointed out that had the decision-maker reviewed and considered the witness statements, the disciplinary outcome may have been different.

Lessons For Employers

 This matter is a reminder that an investigation should be designed to work out what happened, not to just build a case for dismissal.

• Find every potential witness. Ask who was present, who may have seen or heard something, and who might have useful context. Do not stop at the complainant, the respondent, and obvious witnesses. Many conduct allegations cannot be assessed in isolated. Whether conduct was aggressive, intimidating, or otherwise inappropriate will often depend on the surrounding circumstances, including what others said, how the interaction unfolded, and how other witnesses perceived the event. If another name comes up during an investigation, follow it up. In this particular case, a witness had already given an account to the employer but was never asked to make a witness statement. That gap became central to the case. 

• Test the evidence properly. Look for evidence that cuts against the allegation as well as evidence that supports it. That means exploring inconsistencies, alternative explanations, timing issues, and accounts that may favour the employee. This does not mean accepting every conflicting account. It means identifying them, asking questions, and weighing them before reaching a conclusion. 

• Witness statements should be put to the respondent where context matters. In this particular case, the overlooked witness statements were capable of informing that contextual assessment. While the decision does not establish that every witness statement must be provided to the respondent, where witness statements provides critical context or may assist the respondent in defending their position, the substance of that evidence will need to be considered and put to the respondent before any conclusions are reached. 

• Make sure the decision-maker sees everything relevant. An investigation report is not enough on its own. The person making the dismissal decision needs the material evidence, including evidence that does not support dismissal. Employers should be able to show what material went to the decision-maker, what they considered, and why they accepted or rejected particular evidence. A recommendation to dismiss is not a substitute for the decision-maker properly considering the evidence. 

• Put the allegation to the employee. If the case depends on particular incidents, dates, witnesses or a characterisation of conduct, those details need to be put clearly to the employee. A broad allegation of “aggressive” or “intimidating” behaviour may not give someone a fair chance to respond if they do not know exactly what evidence is being relied on. 

• Document the reasoning. Good records can make or break an employer’s position in the event the outcome is challenged. Keep a clear record of:

• • The allegations investigated.
  • The witnesses spoken to and evidence obtained.
  • Conflicting accounts and how they were assessed.
  • What was provided to the decision-maker.
  • The decision-maker’s reason for the outcome. 

If the dismissal is later challenged, the employer should be able to demonstrate a proper and fair process. 

Should any assistance with a workplace investigation be required, please contact our Employment Law team.