Workplace Investigations Procedural Fairness

Workplace Investigations Procedural Fairness – This article below was originally published on HR Daily – https://www.hrdaily.com.au/nl06_news_selected.php?act=2&nav=13&selkey=6180.

I have conducted a number of workplace investigations where employees have claimed that they were unfairly ambushed by employers with allegations of misconduct or poor performance and denied the opportunity to respond.

The invitations to a meetings have come via emails with headings such as “catch up”, “chat, “quick chat”.

If you intend to discuss disciplinary or performance related matters with an employee those should of heading should NOT be used.  You might consider “A catch up to discuss (your performance, an incident)”

At the meeting you should provide the employee of full details of the issues.  You can ask them for their version or an explanation or you can arrange another meeting to discuss their response after they have had a suitable amount of time to consider their response. When I conduct a workplace investigation I provide the person subject of the complaint with a letter detailing the allegations and the investigations process.  The letter also explains their rights in regard to their response and the presence of a support person during any meeting or interview.

If you are unsure about drafting a letter of allegation contact me and I will provide you with a template or you can purchase from our web site the full Workplace Investigation Document Tool box – https://awpti.com.au/investigation-toolbox/

After you have obtained the employees response you should take the time to carefully consider their response and all other evidence that relates to the matter after which you should consider your options both in the interest of the organisation and also in fairness to the employee.

When it comes to performance related matters it is very important to take into account during any form of PIP/PMP whatever you want to call it;

1. If the performance has deteriorated trying asking the employee why? are there reasons?, what has happened?

2. Listen (that is listen to understand not just listen to respond) with an open mind.

3. Ask the employee what they can do or how you can help, to improve the performance. Don’t just be prescriptive telling the employee what they should can, ask :what can you do”?

4. Put yourself in the employee shoes. Remember you are dealing with people lives.

5 Get it right the first time every time for the organisation and the employees. If you are not confident conducting performance management consider our Management Essentials training course – https://awpti.com.au/reasonable-management-action-training/

Okoye v SACARE Supported Accommodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020)

The five-minute disciplinary meeting that preceded an employee’s summary dismissal was a chance to show cause “in name only”, and more akin to an “ambush”, the Fair Work Commission has found.

In September 2019, an SA Care director was told an employee had been tube-feeding clients after completing a “theory only session” on gastronomy care. The director said providing such care without “evidenced” competency breached company policy, and asked the employee to show she was qualified.

The employee said she’d only attended the session as a refresher, having performed the task at another facility. Even so, she was instructed to suspend the activity, pending certification.

The following day, the employee was summoned to a meeting with HR and another manager, who suggested she lacked the necessary certificate to tube-feed in her current role. The employee said she didn’t have the certificate, but was authorised by her supervisor to perform the task.

The managers left the room and returned with a typed letter of summary dismissal.

Deputy President Peter Anderson, the employee said she was given about five minutes to explain herself, and that the managers only deliberated for about five minutes before delivering the news of her dismissal and having her escorted from the premises.

She claimed she’d provided gastronomy care to a patient at another SA Care facility and told her supervisor she was happy to do so in her current role, to which her supervisor replied that although she didn’t have the relevant certificate, she could perform the task having completed the theory training.

The supervisor, however, denied this, contending she told the employee that her training was incomplete and that she needed to do a short refresher and be certified.

DP Anderson said both witnesses were credible and genuine but that there had been “a misunderstanding borne by a lack of clarity”. The supervisor did not give express permission to the employee, nor was the employee told to provide gastronomy care; she was told to enrol for the refresher, and she did.

He also questioned the decision to assign the employee to a client who required tube-feeding if she wasn’t qualified.

“An employee performing a medical procedure on a client and doing so knowing that they do not hold a required qualification would, in the ordinary course, be committing an act of serious misconduct… However, it was ultimately the employer’s responsibility to explain to its staff what they were permitted to do (or continue doing),” he said.

The employee, he noted, had been documenting her actions all along: from July 2019 when she completed a gastronomy feed sheet, the employer was “on notice” that she was performing such care, and could have directed her to stop.

“In these circumstances, on balance I find that a valid reason for dismissal existed, but that the seriousness of the breach was substantially mitigated by context and factors that were within the employer’s control.”

“Superficial” procedural fairness

DP Anderson also found the employee’s opportunity to respond to allegations, in circumstances where the issue escalated from “an operational matter that needed ‘sorting’ into a disciplinary matter”, without warning and within 48 hours, was limited.

He accepted her evidence that the disciplinary meeting took five minutes at most, as did the purported deliberation, and found the decision to dismiss had a “strong flavour of predetermination”.

Even if dismissal wasn’t a foregone conclusion, five minutes was a “wholly inadequate period” to consider the employee’s explanation and weigh disciplinary options.

In asking the employee to explain herself “in the terms demanded”, HR had gone “through the motions” but provided superficial, not substantive, procedural fairness.

The Deputy President said the employee’s mistaken “assumptions” about her authority gave the employer an objective basis to lose confidence in her, but deemed summary dismissal a disproportionate response – particularly when she’d complied with the request to stop performing the task until the matter was “sorted”.

He ordered SA Care to pay her $5,830 in compensation.

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