Employer ordered to pay $56,332 after flawed workplace investigation
A recent Fair Work Commission decision has highlighted the risks employers face when workplace investigations result in unsupported misconduct allegations and employees are dismissed without a proper opportunity to respond.
In Scott Cleary v Winc Australia Pty Limited [2026] FWC 3072, the Fair Work Commission found that Winc had unfairly dismissed a long-serving employee following an investigation into workplace complaints and allegations of a coordinated attempt to remove a manager.
Commissioner Redford ordered Winc to pay $56,332.05 in compensation, together with $6,759.85 in superannuation.
Background to the dispute
Mr Cleary had worked for Winc Australia for almost 19 years and was employed as Service Manager in its Hobart Managed Print Services operation. During early 2026, several employees raised concerns about the conduct of their Operations Manager, including allegations of inappropriate communication, intimidation and unreasonable working expectations. Mr Cleary also complained about the manager’s behaviour.
Winc’s human resources department investigated the complaints and concluded that Mr Cleary had participated in a coordinated effort to have the manager removed from his position. The investigation also found that Mr Cleary had encouraged another employee to complain, made false or misleading allegations and demonstrated performance and behavioural problems.
On 19 March 2026, Mr Cleary was advised that concerns had arisen about his conduct and that management would consider his continued employment the following morning. He was dismissed on 20 March 2026 for alleged serious breaches of workplace policies and expected standards of behaviour.
Misconduct allegations were not established
The Commission examined the evidence supporting Winc’s allegations and found that the employer had failed to establish a valid reason for dismissal. Although some employees had expressed dissatisfaction with the Operations Manager, there was insufficient evidence that Mr Cleary had participated in or encouraged a coordinated attempt to remove him.
The Commission also rejected the allegation that Mr Cleary had directed another employee to make a complaint. That employee gave evidence that he had raised his concerns voluntarily and had not been pressured by Mr Cleary.
Importantly, Commissioner Redford found that several of Mr Cleary’s complaints about the manager were genuine and supported by the evidence. The Commission also rejected allegations that inconsistencies in Mr Cleary’s statements amounted to dishonesty sufficiently serious to justify dismissal.
The employer’s additional reliance on performance concerns was unsuccessful. The evidence of poor performance was limited, and Mr Cleary had not been subject to a formal performance management process.
Employee denied procedural fairness
The Commission was also critical of the process leading to dismissal. Although Mr Cleary had been invited to provide information before management considered his employment, the specific allegations against him had not been clearly explained.
He was not properly informed that he was accused of encouraging a conspiracy, directing another employee to complain or misleading investigators.
Commissioner Redford found that the employee could not meaningfully respond to allegations he did not understand. The Commission concluded that Winc had failed to provide both adequate notification of the reasons for dismissal and a genuine opportunity to respond.
Compensation awarded
The Commission found the dismissal harsh, unjust and unreasonable. Although Mr Cleary sought reinstatement, Commissioner Redford considered that the deterioration in workplace relationships made reinstatement inappropriate.
The Commission assessed that Mr Cleary would likely have remained employed for at least another nine months had he not been dismissed. After deducting earnings from his subsequent employment, Winc was ordered to pay $56,332.05 in compensation plus $6,759.85 in superannuation.
Lessons for employers
The decision reinforces several important principles for employers conducting workplace investigations:
- Establish the facts: Misconduct findings must be supported by reliable evidence rather than assumptions or speculation.
- Assess conflicting evidence: Investigators should carefully examine witness accounts and avoid drawing unsupported conclusions.
- Clearly communicate allegations: Employees must understand the specific allegations against them before disciplinary decisions are made.
- Provide a genuine opportunity to respond: A general invitation to explain why employment should continue is insufficient if the allegations have not been properly identified.
- Address performance separately: Historical or poorly documented performance concerns should not be used to justify dismissal without appropriate assessment.
The key message is that an investigation does not automatically provide a valid reason for dismissal. Employers must be able to substantiate misconduct allegations and demonstrate that a fair process was followed.
Employer Services assists employers with workplace investigations, employee misconduct, disciplinary procedures and unfair dismissal risks.
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