Protecting the complainant v proving the case: A difficult balance

In recent years employers have placed greater importance on the protection of employees who raise allegations of misconduct or wrongdoing. This has been reflected in a range of ways including policies and protocols for dealing with whistleblower disclosures, prohibitions against victimisation or adverse action, the adoption of a trauma-informed approach to workplace complaints and investigations and actively addressing risks from psychosocial hazards. These changes have been driven by both legislative and cultural imperatives.

The recent Fair Work Commission (FWC) decision of Deputy President Cross in Mr Zoran Mojanovski v BlueScope Steel Limited [2024] FWC 1473 (5 July 2024) highlights a difficult balance for employers in unfair dismissal proceedings between protecting a complainant and being in a position to lead the necessary evidence to support submissions that a dismissal arising from the allegations made by a complainant was not unfair.