Workplace Investigation getting it right for first time every time – Recently an article appeared in the Brisbane times that alleged that a cadet journalist was dismissed unfairly, the headline reading – ‘This is disgusting’: Seven Network under fire after cadet dismissed”Link to article

Please note, this post is based on the information contained in the article no judgement is made on the validity of the content and to our knowledge the allegation made against Channel Seven have not been tested. Channel Seven has since denied the allegations and the matter was settled out of Court in February.

This article considers the general principals of procedural fairness. regardless of whether or not Channel Seven did the right things here are some tips about procedural fairness in dealing with misconduct matters.

Some of the issues raised in the article included;
“When Ms Taeuber asked for the statement of the person making the allegations of bullying against her, the HR manager said: “OK, so how do we want to plan your exit, Amy? I do understand that we don’t want to make it humiliating for you.”

This may fall under the FWA procedural fairness guideline – the right to know

The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account;

s387 (b) whether the person was notified of the reason for the allegation of misconduct.

It is important that a person accused of wrongdoing or misconduct has the right to know what it is alleged that they have done. This should be done at the earliest possible opportunity in as much detail as is reasonable.

The right be heard or to respond to an allegation/complaint or performance issue is referenced in the Fair Work Act 2009 – s387 – criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

s387 (C)  whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

When a complaint or allegation is made against an employee or that an employee’s behaviour or performance is unsatisfactory, that employee has the right to respond or put their side of the story or version of events forward.

In the case of a complaint or allegation, after the employee has been advised of the issue they must be given sufficient time to consider the complaint before being asked to respond. The time will depend on the seriousness and perhaps the number of issues. We recommend putting yourself in their place and provide sufficient time.

The article also stated that;

“The audio recording puts a spotlight on Seven’s treatment of its employees. Early in the meeting, the HR manager had ordered Ms Taeuber’s support person, chief of staff Lesley Johns, leave the room. When Ms Johns began to protest, she was cut off.”

This may fall under the FWA procedural fairness guideline – the right to have a support person present

The right to have a support present during interviews that may result in disciplinary action being taken against the employee is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness etc.

In considering whether it is satisfied that a dismissal was harsh, unjust or unreasonable, the FWC must take into account:

s387 (d) any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal

Workplace Investigation getting it right for first time every time – The investigation into workplace misconduct and complaints requires experience and expertise in understanding of the process, investigative interviewing, procedural fairness, the rules of evidence and relevant legislation. If you don’t have this or the time to conduct a thorough investigation we recommend one of three options;

  1. Call an expert – http://awpti.com.au/ or contact us on 02 9674 4279 or enquiries@awpti.com.au
  2. Get some training, we highly recommend – http://awpti.com.au/investigation-training/
  3. If you still want to ‘Do it Yourself’ without training we have a number of products that can assist – http://awpti.com.au/hr-products/

Don’t take the risk of getting in wrong, it can be costly.

AWPTI – Workplace training Sydney and through-out NSW and national wide
Misconduct training, bullying training, harassment training & sexual harassment training, dispute & grievance resolution training, management training.

http://awpti.com.au/training/

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The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

This is general information only. It does not replace advice from a qualified legal professional or workplace investigator in your state or territory.  It is recommended that should you encounter issues in the workplace that you seek advice from suitability qualified and experienced legal professional or workplace investigators.

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