When the Investigation Becomes the Problem: Cairns v Oceaneering Australia [2024] FWC 2611

In March 2024, Oceaneering Australia Pty Ltd summarily dismissed Travis Cairns - a six-year employee, fly-in fly-out NDT Technician, and AMWU union delegate - for serious misconduct. The trigger was a WhatsApp message he had sent in October 2023 to a group of approximately thirty colleagues, celebrating that his shift had achieved 100% union membership.

The company engaged an external investigator. Ran a full process. Found three of four allegations substantiated. Then dismissed.

Commissioner Johns of the Fair Work Commission found the dismissal unfair and ordered compensation of $83,750. The Full Bench dismissed Oceaneering's appeal in July 2025.

The real cost was not the compensation figure. It was the public finding that the investigation was subjectively reasoned, analytically flawed, and failed to meet the standards the Commission expects. For any HR practitioner who commissions, designs, or oversees workplace investigations, this case is required reading.

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1. The Chronology: How a Celebration Became a Termination

Understanding the sequence of events is essential to appreciating where the process broke down. Each step that follows is taken directly from the decision.

October 2017 - Travis Cairns commences employment as an Advanced NDT Technician, FIFO, Bass Strait Esso platforms. He is also an AMWU delegate.

April 2023 - During enterprise agreement bargaining, Cairns creates a WhatsApp group chat for approximately 30 colleagues across both shifts to discuss bargaining claims and workplace issues. He also creates a spreadsheet on OneDrive tracking bargaining claims, with columns for Name, Membership status, and Phone number.

5 October 2023 - Cairns sends a message in the WhatsApp group celebrating that Shift 2 has achieved 100% union membership. He attaches a screenshot of the spreadsheet showing members from Shift 2, writing "Shift 2 = 100% 🌟😍".

~November 2023 - Six weeks later, two employees from Shift 1 - who were not members of the WhatsApp group - complain to Oceaneering that the message revealed their union membership status and phone numbers without consent.

17 November 2023 - Cairns is stood down on full pay. Oceaneering commissions an external investigation through AREEA.

18 December 2023 - First investigation meeting. During the meeting, the investigator admits he has not seen the full WhatsApp chat. Cairns offers to provide it to him and subsequently does so.

19 February 2024 - Outcomes letter: three of four allegations found substantiated. The letter states the company has "not yet made a decision in relation to your ongoing employment."

22 February 2024 - Cairns provides his response to the Outcomes Letter.

23 February 2024 - Show Cause Letter: Cairns is directed to show cause why his employment should not be terminated. The letter adds a new allegation - not investigated, and not particularised - that his behaviour had "had the effect of humiliating and intimidating other Oceaneering employees."

5 March 2024 - Summary dismissal for serious misconduct. Five weeks' pay in lieu of notice.

28 October 2024 - Commissioner Johns: dismissal unfair. $83,750 compensation ordered. [2024] FWC 2611.

16 July 2025 - Full Bench dismisses Oceaneering's appeal. [2025] FWCFB 144. Finding confirmed.

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2. The Six Investigation Failures That Cost $83,750

Commissioner Johns identified multiple specific failures in Oceaneering's investigation. These are the exact failures, in the Commission's own terms.

Failure 1: The investigator had not reviewed the core evidence before interviewing

At the first meeting on 18 December 2023 - two weeks after Cairns had been provided with the allegations - the investigator admitted he had not seen the full WhatsApp chat. This was the subject matter of the investigation. Cairns had to offer to provide it.

This is a foundational failure. Before a single interview commences, every directly relevant document must be in the investigator's hands. An investigator who has not read the evidence cannot ask the right questions, cannot fairly put the allegations, and cannot assess the subject employee's responses with any analytical rigour.

Failure 2: Allegations built on a logical assumption rather than direct evidence

The core allegation was that the spreadsheet screenshot revealed the union membership status of non-members. The logic was: blank cells in the membership column must mean the person is not a union member.

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There is simply nothing in the table, read in context, to suggest that the necessary conclusion must be that the person is not a member of the union.

A blank cell could mean unknown. It could mean the information was not entered. It could mean the person had not yet been asked. The Commission's finding is a lesson in evidentiary rigour: allegations must be directly traceable to specific evidence, not to an inference that seems plausible.

Failure 3: Witness testimony accepted uncritically - without testing

Two witnesses - referred to in the decision as Alpha and Omega - gave evidence about their concerns. The Commission found their testimony to be "subjective and not entirely logical" and found that it "should not prevail."

The critical issue was that neither Alpha nor Omega had experienced any actual adverse treatment as a result of the message. Their evidence was about what might happen - about fear and speculation - not about harm that had occurred. The investigation accepted that fear as substantiated harm without probing the distinction.

Failure 4: Witness evidence that "coloured Oceaneering's objectivity"

The Commission went further than finding the witness evidence inadequate. It found that the acceptance of Alpha and Omega's subjective testimony had "coloured Oceaneering's objectivity" in the entire investigation. This is a serious finding - it means the investigative framework was infected by partial reasoning from an early stage.

Failure 5: No actual harm had occurred - but findings treated it as if it had

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Witness Alpha and Omega had subjective feelings, and they had concerns. But none of them came to fruition. The publication did not have the 'effect' of targeting them in any way.

Neither Alpha nor Omega experienced any adverse treatment from colleagues following the message. Alpha acknowledged the concerns were hypothetical. Omega did not claim adverse treatment. The investigation findings treated speculation as if it were substantiated impact.

Failure 6: A new, unparticularised allegation added after the investigation - at show cause stage

The Show Cause Letter of 23 February 2024 added an allegation that had not been investigated: that Cairns' behaviour had "had the effect of humiliating and intimidating other employees." This allegation was added after the investigation was complete. It was not particularised. Cairns could not meaningfully respond to it because it had not been the subject of any investigative process.

This is a textbook procedural fairness failure. The subject employee is entitled to know the allegations against them and to respond to them before a decision is made. An allegation added at show cause stage - after findings have been delivered - cannot satisfy that requirement.

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3. Why the Compensation Was Near the Cap

The $83,750 award applied the Sprigg formula (Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21) under section 392 of the Fair Work Act. The figure reflects several compounding factors:

• Tenure: More than six years of continuous employment significantly increases the remuneration loss period.
• Nature of dismissal: Summary termination - no notice genuinely worked, five weeks' pay in lieu.
• No contributory misconduct: The Commission found the core conduct (celebrating union membership as a delegate) was lawful. There was no meaningful deduction for contributory conduct.
• Compensation cap at time of dismissal: $87,500 (dismissals between 1 July 2024 and 30 June 2025). The award of $83,750 represents 96% of the available maximum.

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4. Five Things This Case Requires HR Practitioners to Change

Oceaneering did not set out to conduct a flawed investigation. The error was not bad faith - it was the absence of disciplined, structured investigation design. These are the five operational changes this case demands.

1. The investigator must review all evidence before the first interview

This is not optional. Before any interview commences, the investigator must have gathered and reviewed all directly relevant documents. In Cairns' case, the subject matter was a specific message in a specific chat. The investigator had not read it. HR practitioners commissioning external investigators must confirm - in writing - that all relevant materials have been reviewed before interviews begin.

2. Every allegation must be directly traceable to specific evidence - not logical inference

Before any show cause letter is issued, the HR practitioner or legal adviser must be able to complete this sentence cleanly: "The specific evidence that supports this allegation is X." If that sentence cannot be completed without resorting to inference or assumption, the allegation is not ready to be put.

3. Witness testimony must be tested - not just recorded

The Commission's description of Alpha and Omega's evidence as "subjective and not entirely logical" reflects a failure to probe what witnesses actually said. Investigators must ask: Has this actually happened to you? What specific adverse consequence did you experience? Fear and speculation, however sincerely expressed, are not substantiated harm. Good investigation technique requires the investigator to distinguish between the two and record that distinction explicitly.

4. Never add new allegations after the investigation is complete

The allegations in scope are set at the commencement of the investigation process. If new conduct comes to light during the investigation that was not part of the original scope, it must be addressed through a separate, fresh process. Adding an unparticularised allegation at show cause stage - after the investigation has delivered its findings - is a procedural fairness breach that will not survive Commission scrutiny.

5. Union delegate conduct requires specific legal advice before the investigation is designed

Before any investigation involving a union delegate's conduct in their capacity as a delegate, take specific legal advice on whether that conduct falls within the scope of protected activity under Part 3-1 of the Fair Work Act. This is not a step that can be deferred to the end of the process. It must inform how the investigation is scoped and how allegations are framed.

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Key Takeaways

1. $83,750 - near the cap. The award represented 96% of the maximum available. The Full Bench appeal was dismissed in July 2025 [2025] FWCFB 144. Legal fees for the full process were additional.

2. Having an investigation is not the same as having a defensible investigation. The Commission assesses whether the investigation's reasoning was sound - not just whether a process was followed.

3. The investigator must review all relevant evidence before interviewing. In this case, the investigator had not read the WhatsApp chat that was the subject of the investigation at the time of the first meeting.

4. Allegations must follow directly from evidence - not inference. A blank cell in a spreadsheet does not logically establish non-membership. Every allegation must be traceable to specific, direct evidence.

5. Witness testimony that is speculative is not substantiated harm. Neither complainant had experienced actual adverse consequences. The investigation accepted their fear as fact.

6. Never add allegations at show cause stage after the investigation is complete. This is a procedural fairness breach. The subject employee cannot respond to an allegation that was not investigated.

7. Union delegate activity may be protected. Conduct in the exercise of union delegate responsibilities during bargaining is potentially protected under Part 3-1. Take legal advice before the investigation is designed - not after.

8. The compensation cap from 1 July 2025 is $91,550. A similar case decided today carries higher maximum exposure.

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Sources

1. [1] Travis Cairns v Oceaneering Australia Pty Ltd [2024] FWC 2611 (Commissioner Johns, Melbourne, 28 October 2024). Full decision: fwc.gov.au/documents/decisionssigned/pdf/2024fwc2611.pdf
2. [2] Cairns v Oceaneering Australia Pty Ltd [2024] FWC 1912 (Commissioner Johns, 22 July 2024). Recusal application dismissed prior to determinative conference.
3. [3] Cairns v Oceaneering Australia Pty Ltd [2025] FWCFB 144 (Full Bench, 16 July 2025). Employer's appeal dismissed; unfair dismissal finding confirmed.
4. [4] Fair Work Act 2009 (Cth) ss.385, 387, 392, 394. Criteria for unfair dismissal; compensation formula; application procedure.
5. [5] Sprigg v Paul's Licensed Festival Supermarket (1998) 88 IR 21 (AIRCFB). The Sprigg formula applied in calculating unfair dismissal compensation.
6. [6] Fair Work Commission. Compensation cap: $87,500 (dismissals 1 July 2024–30 June 2025); $91,550 (dismissals from 1 July 2025). fwc.gov.au/compensation-cap
7. [7] Fair Work Commission Annual Report 2024–25. 44,075 total applications; median unfair dismissal compensation: 5–7 weeks' pay. fwc.gov.au
8. [8] AWNA (2025). $83K Win due to Botched Workplace Investigation. Analysis of Cairns v Oceaneering. awna.com.au