Sexual Harassment Training – it is apparent that the issue of sexual harassment in the workplace is not going away.

As an employer what are you duties and responsibilities?

A recent article suggested that sexual harassment should be recognised as a workplace safety issue more details here

The Work, Health & Safety Act imposes a responsibility (Duty of Care) on employers or persons conducting a business to take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness, this includes taking reasonable steps to eliminate and/or respond to workplace sexual harassment and bullying.

Courts have found that workplace sexual harassment and bullying can lead to the development of psychological injuries such as anxiety, stress, depression, PTSD and in the worse cases lead to suicide.

If a complaint of sexual harassment is received, failure to act could result in a finding that there has been a breach of a duty of care and can result in a claim of negligence and the potential for costly litigation and large compensation payouts, for more details

To ensure that you satisfy your Duty of Care it is strongly recommended that you must have;

  • A policy that makes it clear that your business will not tolerate sexual harassment in the workplace and will take all reasonable steps to minimise the likelihood of it occurring?
  • Training to support your policy so that all you employees know what the behavioural expectations of the organisation are?
  • Training that ensures your employees understand what constitutes sexual harassment?
  • A trusted process by which employees who feel that they have been sexual harassment can report the matter?
  • A professional and timely procedure by which reports of sexual harassment are investigated?
  • The ability to outsource sexual harassment complaints for investigation by professional and expert workplace investigators if required.
  • Training for your managers and HR staff to ensure that they are able to identify behaviours in the workplace that could lead to complaints and take pro-active steps to deal with such matters.
  • Training for your managers and HR staff to ensure that they can investigate matters of sexual harassment in a timely and professional manner?

Many employers are faced with questions around, what sort of training, how will it be delivered, who will deliver it.

AWPTI can assist you in a number of ways;

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/
http://awpti.com.au/hr-products/

Unfair dismissal minimum employment period – The Fair Work Act sets out the minimum periods of employment that an employee must satisfy to be covered by the unfair dismissal provisions of the Fair Work Act;

Unfair dismissal minimum employment period
FAIR WORK ACT 2009 (NO. 28, 2009) – SECT 383

Meaning of minimum employment period

The minimum employment period is:

(a) if the employer is not a small business employer–6 months ending at the earlier of the following times:

(i) the time when the person is given notice of the dismissal;

(ii) immediately before the dismissal; or

(b) if the employer is a small business employer–one year ending at that time.

If an employee who has not completed the minimum employment period submits an unfair dismissal application the employer will generally raise a jurisdiction objection seeking that the application not be allowed to proceed.

Employers must note that if an employee has completed the minimum employment period at an entity associated with the employers current business or under the control of the employer, that period of employment may be taken into account as it was in the matter of haran v Meeples P/L atf The Games Shop Trust t/a The Games Shop

In this matter before the FWC on 22 November 2017 the applicant was first employed by Games Laboratory (‘GL’) for 14 months and was employed by TGS for two months. It was the case that unless period of service with GL was recognised the minimum employment period would not have been completed.

The applicant submitted period of service with GL counted as service with TGS. The respondent argued no transfer of employment occurred as the companies were not associated entities.

At the FWC, Commissioner Harper-Greenwell found the companies to be associated entities because TGS had capacity to determine the outcome of decisions of GL or vice versa.  It was found that each entity had the same two directors, that both directors had controlling interests and equal share holdings in both companies and that the directors had practical control over the financial and operating policies of both companies,  therefore there had been a transfer of applicant’s employment and applicant’s service with GL was recognised. The jurisdictional objection dismissed.

As a result the of objection being dismissed this matter was allow to proceed the outcome of which will be reported if and when it is available.  This matter may still be settled in conciliation.

Unfair dismissal minimum employment period – AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

 

Workplace Misconduct Investigation Sydney NSW –  Recently at the Fair Work Commission the reinstatement of an employee was ordered in a misconduct matter.

On 22 November 2017, the Fair Work Commission considered that matter of Thomas v ACT Government – Transport Canberra and City Services t/a ACTION– Termination of employment, misconduct – s.394 Fair Work Act 2009 – application for unfair dismissal remedy.

In this matter the applicant Mr Thomas a bus driver was dismissed following an incident that occurred whilst performing his duties when he became involved a physical altercation with the male driver of a utility. The applicant extended his finger to the other driver in a rude gesture and broke the driver’s side mirror of the other vehicle.

In his defence the applicant stated that he did not instigate the incident. The Commission found there was a valid reason for termination in that the applicant failed to meet his obligations under the s.9 Public Sector Management Act to exercise reasonable care and treat members of the public with courtesy.

However Deputy President Kovacic held the dismissal was disproportionate to the applicant’s misconduct when consideration was given to the circumstances surrounding the incident, his length of service, and employment record.

Deputy President Kovacic found employment relationship was likely bruised but not beyond repair and that reinstatement appropriate. The Deputy President declined to order remuneration given applicant’s conduct in ‘flipping the bird’ and damaging the other vehicle. It was found that the dismissal was harsh and reinstatement with continuity of employment to be maintained was ordered.

Workplace Misconduct Investigation NSW/ACT – Lesson for employers

  • Always consider all of the circumstances when considering dismissal
  • Ensure that the punishment fits the crime
  • If in doubt call in an expert to investigate the matter thoroughly
  • Ensue that your managers and HR professional are fully trained in the areas of
    • Miscounduct
    • Misconduct investigation
    • Reasonable management action
    • Unfair dismissal

Workplace Misconduct Investigation Sydney NSW- AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

Investigating sexual harassment complaints – failure could constitute a beach of an employer’s duty of care

The Work, Health & Safety Act imposes a responsibility (Duty of Care) on employers or persons conducting a business to take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness, this includes taking reasonable steps to eliminate and/or respond to workplace sexual harassment and bullying.

Courts have found that workplace sexual harassment and bullying can lead to the development of psychological injuries such as anxiety, stress, depression, PTSD and in the worse cases lead to suicide.

If a complaint of sexual harassment is received, failure to act could result in a finding that there has been a breach of a duty of care and can result in a claim of negligence.

Actions in negligence

What does the plaintiff (the person bring the action) have to prove in an action for negligence?

  • That there was a duty of care.
  • That the respondent/defendant/employer breached the duty of care
  • That the breach resulted in the plaintiff/employee suffering a damage

Plus

  • The damage was caused by the breach (causation)
  • That it was reasonably foreseeable that damage would occur to the plaintiff as a result of the defendant’s actions

Ensuring that you satisfy your duty of care

Do you have;

  • A policy that makes it clear that your business will not tolerate sexual harassment in the workplace and will take all reasonable steps to minimise the likelihood of it occurring?
  • Training to support your policy so that all you employees know what the behavioural expectations of the organisation are?
  • Training that ensures your employees understand what constitutes sexual harassment?
  • A trusted process by which employees who feel that they have been sexual harassment can report the matter?
  • A procedure by which reports of sexual harassment are investigated?
  • The ability to outsource sexual harassment complaints for investigation by professional and expert workplace investigators if required.
  • Training for your managers and HR staff to ensure that they are able to identify behaviours in the workplace that could lead to complaints and take pro-active steps to deal with such matters.
  • Training for your managers and HR staff to ensure that they can investigate matters of sexual harassment in a timely and professional manner?

Polices, processes and training alone will not stop sexual harassment. As an employer it is important to act quickly if complaints are made and to deal with potential misconduct in a timely and professional manner in order to minimise any fallout.

Investigating sexual harassment complaints  – Sexual harassment is highly detrimental to the victim and can cause long lasting issues including anxiety, depression and a type of PTSD.

Not having processes in place and/or doing nothing about complaints can result in costly litigation against employers. Examples of court cases and compensation payouts can be found – http://awpti.com.au/sexual-harassment-investigation/

Investigating sexual harassment complaints  – If you wish to engage a professional investigator AWPTI can assist you, http://awpti.com.au/investigations/ if you would like to know how to engages us – http://awpti.com.au/investigations/engage-awpti/

If you do not have training programs in place that clearly outline the behavioural expectation of your organisations, please contact us we have programs that can be tailored to your business and your budget – http://awpti.com.au/training/

If you are not sure what type of investigator to engage, this article may assist – http://awpti.com.au/choosing-a-workplace-investigator/

Sexual Harassment is your business covered? – AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

Sexual Harassment Complaint Investigation

With all the publicity surrounding the sexual harassment allegations in Hollywood and the #MeToo campaign it is reasonable to expect that HR departments are felling some degree of fear and panic as sexual harassment allegations multiply.

There have been claims in the media that amid a deluge of sexual harassment allegations and reports of workplace misconduct many human resources managers may be feeling this fear and panic but there is no need to need to panic, just remain calm and contact Australian Workplace Training & Investigation, we can assist and take away the stress and pain – enquiries@awpti.com.au

As a manager or HR professional if you are confronted by a sexual harassment complaint you must take action. We recommend the following steps

  1. Record full details of the initial complaint.
  2. Decide your course of action
  3. Commence an investigation
  4. Develop a terms of reference and an investigation plan
  5. Advise the parties involved of what is happening (complainant, respondent and maybe witnesses)
  6. Conduct a full interview with the complainant to get full details of the compliant/issues/incidents
  7. Interview witnesses to gather corroborating evidence
  8. Collecting all other evidence such as documents and records
  9. Formulating allegations and advise the respondent (usually by letter)
  10. Interview the respondent – obtain the respondent’s version of events
  11. Interview any witnesses nominated by the respondent
  12. Evaluating all of the evidence
  13. Make your findings
  14. Report the finding

Sexual Harassment Complaint Investigation – Sounds like a lot to do? It is, but Australian Workplace Training & Investigation (AWPTI) can assist by taking away the stress and ensuring we conduct a professional investigation on your behalf.

We will take care of all the paperwork including all of the letters to parties especially the letter containing allegations to the respondent if required.  We organise the interviews with all the parties, we review all the evidence and provide you with a full report with findings and recommendations.

AWPTI ensures that the sexual harassment complaint investigation is conducted in a timely and professional manner, we ensure that procedural fairness is afforded to the respondent and that the final report is clear, concise and legally compliant.

Sexual harassment complaint investigation is a complex and difficult task that requires a high level of skill and experience to ensure that you get it right the first time every time. Engaging AWPTI ensures that you will receive the best service in a timely manner safeguarding your interests. http://awpti.com.au/investigations/engage-awpti/

Don’t take the risk of getting it wrong, contact AWPTI if require a sexual Harassment complaint investigation – enquiries@awpti.com.au or via http://awpti.com.au/

For details of our investigation services –  http://awpti.com.au/investigations/

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

 

 

Sexual Harassment Complaints Are you READY part 1 – dealing with complaints internally, do you have the processes, documents and guides in place at your organisation.

With the increasing publicity surrounding sexual harassment in Hollywood and the #MeToo campaign it may only a matter of time before there is an increase in the reporting of sexual harassment complaints in the workplace, is your organisation ready to deal with complaints internally?

Responding promptly and correctly is in the best interests of victims and the organisation.

If you receive a complaint of sexual harassment it is vitally important that;

  1. You respond in a timely and professional manner with a thorough investigation of the complaint.
  2. Your response is fair and balanced taking into accounts the needs of all the parties.
  3. Your investigation is carried out in a professional manner taking into account the investigative procedure, procedural fairness, the rules of evidence and is legislatively compliant.

An important part of any investigation into complaints of sexual harassment is having and using the correct investigation documents.

If your organisation does not have access to a full suite of workplace investigation documents, AWPTI can assist with our comprehensive Investigation Document Toolbox contains 35 documents and an Investigation Interview Manual, full details here

We are also able to provide manuals including Procedural fairness and Reasonable Management Action – HR Products

AWPTI can also provide training for your employees detailing the behavioural expectation of your organisation – http://awpti.com.au/employee-training/

We can also provide training for your HR professionals and managers to ensure that they are able to conduct investigations into complaints of sexual harassment in an effective manner – http://awpti.com.au/investigation-training/

Sexual Harassment Complaints Are you READY part 1 – Failure to investigate sexual harassment complaints properly can lead to serious consequences for victims and at times the potential for litigation in relation to a breach of the employers duty of care, this can be very expensive – http://awpti.com.au/sexual-harassment-investigation/

Workplace Investigation Document Toolbox

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

 

 

Has the fear of bullying claims put a freeze on performance management?

As a workplace investigator there are times when at least 50% of the complaints I investigate stem from employee disaffection with being performance managed.

So what are the issues

Not dealing with poor performance when it arises, and hoping it all improves with time.

This is very common, not only does it mean that issues are not addressed, more importantly it gives the employee the sense that everything is OK, they are doing fine.

Unfortunately when that employee is approached by a manager who suggests that their performance is not up to where it should be the reaction is often shock and disbelief which translates in many cases to, you must be wrong, there is nothing wrong with what I am doing, why are you picking on me, this is bullying, this is harassment!!

Performance management is not bullying or harassment it is reasonable management action – when it is conducted in a reasonable manner.

When employers don’t want to confront an employee because they personally find it challenging and anticipate that the employee will also, they tend to give bland mixed messages which don’t convey the full picture to the employee.

Many managers don’t like to deliver bad news, unfortunately many managers are ‘gun shy’ and are worried about upsetting people and getting complaints.

If you are a manager you are going to have to manage. If you manage there is a chance you are going to get complaints even if you are in the right and have followed the correct process. You cannot stop employees from complaining, remember in their mind, you are wrong, there is nothing wrong with their performance, so why are you picking on them, this must be bullying, this must be harassment!!

If you have an effective Performance management in place, dive it get it done.

Not acting to terminate employment when it has become clear that performance has gone way below the acceptable level and isn’t improving.

There are many reasons why an employee is reluctant to terminate and I have heard these reasons on a number of occasions;

  • The employee is a good person
  • The employee has a family
  • The employee is trying hard

In these cases an effective performance management process can often resolve the situation but as a manger you have to dive in and get it done.

Other reasons,

  • Fear of a bullying complaint
  • Fear of an unfair dismissal application
  • Fear of legal action.

If you have an effective performance management and a trusted investigation process in place, and assuming you have followed that process you will be able to defend actions against you, so stop worrying and dive in and get it done.

Now, if you don’t have effective performance management and a trusted investigation process in place it’s time to get on the phone and call an expert and start by getting some training in how to conduct effective performance management. The money you spend may save you much more in the future, plus not having to worry………….. That’s priceless.

So what does an investigator know about performance management? We see it when it goes wrong, we see the mistakes, and we see it when the proper process has been followed but complaints are still made and of course we investigate the complaints.

To help businesses overcome these problems, I have designed a performance management program that will ensure that when someone like me comes along to investigate a complaint against you, you have ticked all the boxes, crosses the t’s and dotted the i’s.

Don’t get caught fearing performance management.

Unfair dismissal workplace investigations

A recent  decision at the Fair Work Commission has reminded employers of the need to ensure they have fully investigated all of the relevant facts and treated employees with compassion and fairness before terminating the employment on the grounds of failure to meet the inherent requirements of their role.

A 56-year-old female employee who was dismissed by cleaning contractor Joss Facility Management has been found to have been unfairly dismissed by the Fair Work Commission – Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc3669.htm

Veronica Bennett worked as a cleaner at three sites in the regional NSW town of Blayney. The company is a large enterprise with approximately 800 full-time employees, including dedicated HR staff.

In August 2016, Ms Bennett commenced unpaid sick leave following a medical procedure to remove spurs from her left foot and ankle. During the period of recovery, she provided ongoing medical certificates from her treating doctor who advised she was unfit for work for various fixed periods of time.

Ms Bennett provided evidence that she had ongoing discussions with the company’s ¬return-to-work co-ordinator and in January said she expected to clarify her potential return to work at a doctor’s appointment on February 10. On February 6,  Ms Bennett received a call from the company injury manager and internal legal counsel who concluded during the conversation that Ms Bennett could no longer perform the “inherent requirements” of her position and she as terminated.

Joss Facility Management sent Ms Bennett a letter the next day confirming her dismissal. However, three days later, her doctor issued a certificate stating she was fit to resume work on February 14.

In his judgement, Commissioner Ian Cambridge said “employees are human beings and not human resources”.

“An employee is entitled to be treated with basic human dignity, and advice of the termination of employment by telephone or other electronic means should be strenuously avoided so as to ensure that the dismissal of an employee is not conducted with the perfunctory dispassion of tossing out a dirty rag,” Commissioner Cambridge said

He concluded by saying the applicant was dismissed because the employer decided that she was unable to undertake the inherent requirements of her position. “There was no medical prognosis or opinion upon which this decision of the employer could have been properly established,” he said.

“The reason for dismissal was erroneous, capricious, unsound, unfounded, fanciful, ill-considered, illogical, intemperate, and devoid of compassion.”

Commissioner Cambridge added that the reason for the applicant’s dismissal had no basis in fact, as was confirmed when four days after the dismissal the applicant was provided with a medical clearance to return to work.

“The procedure that the employer adopted, particularly involving the telephone discussion during which advice of the decision to dismiss was conveyed, was highly inappropriate, and did not provide a proper or realistic opportunity for the applicant to be heard or provide evidence as to her medical prognosis. Thus, the employer denied natural justice to the applicant.

In summary, this case has involved a very regrettable absence of valid reason for the applicant’s dismissal. Further, it has been highly lamentable to observe the seriously flawed manner in which the employer first determined, and then conveyed the decision to dismiss the applicant.

The circumstances of this case provide strong foundation for argument against any lessening of legislative protections for unfair dismissal, a proposition which seems to regularly resurface, and gain a level of publicity that is disconnected with reality.

Regrettably, the dismissal of the applicant was harsh, unjust and unreasonable. Thankfully, the applicant is a person protected from unfair dismissal, and she is entitled to have the Commission provide an appropriate remedy.”

In regard to the remedy, the commissioner stated,

“In the particular circumstances of this case, I have formed the view that an injustice of the highest order would stand if the applicant was not provided with the remedy that she has earnestly sought. Therefore, I have concluded that reinstatement would be appropriate in all of the circumstances of this case.

Consequently, for the reasons stated above, I find that the dismissal of the applicant was unfair, and I am prepared to make Orders for the reinstatement of the applicant.

Orders providing for the reinstatement of the applicant will be issued separately. In the event that the Parties are unable to agree on the amount to be paid to the applicant in accordance with Order 3, regarding an Order to restore lost pay, the application will be listed for further proceedings to enable the Commission to determine that amount. Any request for such further proceedings should be made within 21 days from the date of this Decision.”

Lessons for employers – Unfair dismissal workplace investigations

* Employers should careful investigative all the circumstances before proceeding to termination.
* Consideration must be given to the the employees circumstance

Unfair dismissal workplace investigations
AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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

FWC Criteria for considering harshness unfair dismissal – The Fair Work Act current consists of around 900 sections when you include all the aa, ab etc, it is therefore unreasonable to expect HR professionals and mangers to be fully conversant with the entire act.

One section that is vitally important to understand and adhere to when dismissing an employee is section 387 – Criteria for considering harshness.

The recent case of Fraser Murray v Reliable Petroleum Pty Ltd [2017] FWC 3552 highlighted the Fair Work Commission’s examination of section 387

In this case  the applicant Mr Frazer was employed by Reliable Petroleum as a tanker driver.  He worked as a fuel tanker driver for 39 years, without previous incidents.  On On Monday 5 December 2016, he was detected by a fixed speed camera located on the South Eastern Freeway travelling down from the Adelaide Hills travelling at 88 kph in a 60 kph zone. Mr Frazer was dismissed by Reliable Petroleum for serious misconduct.

At the hearing Commissioner Hampton considered section 387;

Section 387(a) – whether there was a valid reason for the dismissal related to the applicant’s capacity or conduct (including its effect on the safety and welfare of other employees).

Commissioner Hampton found that the Mr Frazer’s conduct essentially involved him not paying full attention to multiple change of speed limit signs and slowing at the point required where the speed limit changed to 60kph.  While finding that this was not deliberate, this was a serious oversight in all of the circumstances.

In relation to the respondent’s policies and procedures Commissioner Hampton found that they had been explained to the applicant and that he understood them. The policies themselves were also found to be reasonable and appropriate given the nature of the industry and the public, personal and business risks associated with the work of a heavy vehicle driver.

After considering all the factors and applying the relevant principles Commissioner Hampton found there was a valid reason for dismissal.

FWC Criteria for considering harshness unfair dismissal

Section 387(b) – whether the Applicant was notified of the reasons for dismissal.

The Commissioner found that the Applicant was notified of the reasons for his dismissal

Section 387(c) – whether the Applicant was given an opportunity to respond to any reason related to his capacity or conduct.

The Commissioner found that the applicant was aware of the allegations about his conduct and was given a reasonable opportunity to respond.

Section 387(d) – any unreasonable refusal by the respondent to allow the Applicant a support person.

This was not in issue as the the applicant was afforded an opportunity to have a support person present at the meetings leading to the dismissal and this occurred.

Section 387(e) – if the dismissal is related to unsatisfactory performance by Mr Murray– whether he has been warned about that unsatisfactory performance before the dismissal.

The Commissioner found that the dismissal was fundamentally related to conduct.

While not stated in the judgment, Reliable Petroleum provided evidence that the applicant had never been previously warned about unsatisfactory performance, however this was not a factor in this matter as the dismissal related to misconduct and not performance issues..

Section 387(f) – the degree to which the size of the respondent’s enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Not in issue

Section 387(g) – the degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal.

Sections 387(f) and (g) were considered together,  the Commissioner held that Reliable Petroleum was a large business and has access to dedicated human resources expertise..

Section 387(h) – other matters considered to be relevant.

Commissioner Hampton gave careful consideration to other factors that were considered to be relevant such as

  • The impact of the dismissal upon the applicant given all of the circumstances.
  • Whether the dismissal was harsh in the sense that it was disproportionate to the actual conduct
  • The economic and personal consequences resulting from being dismissed.

Commissioner Hampton outlined the competing considerations in this matter including:-

  • include the seriousness of the incident, the potential impact upon reputation and public risk and the extent of the speeding and the context in which it occurred
  • the fact that the applicant performed driving functions before and after the speeding incident without other concern; and
  • the fact that the applicant had a very long history of driving without previous speeding offences.

In identifying those considerations Commissioner Hampton also noted that the respondent was right to be concerned about the potential for adverse publicity if it did not take appropriate action against the applicant in circumstances where another incident occurred into the future and other road users or infrastructure was involved in any such incident.

Commissioner Hampton found that, while the conduct could not be condoned, it did not mean that dismissal was the only option and that it fell to the Commission to ultimately determine the fairness of that response in all of the prevailing circumstances.

After considering all the circumstances the Commissioner found that there were a number of factors that made the dismissal of the Applicant harsh. These include:

  • The exact nature of the conduct and the circumstances in which the incident took place including that it was a single incident involving inattention rather than a deliberate or reckless action, and objectively there was little room for concerns that the behaviour would be repeated;
  • the applicant’s immediate recognition that his conduct was not appropriate and his genuine contrition;
  • the likely impact upon the applicant of the dismissal given his age and industry service;
  • the absence of any actual reputational or other consequences for Reliable Petroleum; and
  • his work history, the nature of the work he had been assigned over that time, and the nature and circumstances of his employment

Commissioner Hampton found that reinstatement of the applicant was appropriate in all the circumstances.

Lesson for employers

  • The punishment must fit the crime
  • Other factors must be taken to account

For a more detailed examination of this case have a look at the article by Anderson Fredericks Turner  lawyers
https://www.aftlawyers.com.au/2017/07/28/dismissal-truck-driver/

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide

Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

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