Defending Unfair dismissal applications – If you terminate a employee there is always the possibility that the employee might submit an application to the FWC for unfair dismissal.

If an application is made an employer must respond to the application otherwise the FWC may regard the matter as being uncontested as it did in the matter of Antonarakis v Logan City Electrical Service Division P/L.

In this matter the applicant was dismissed after allegations that he was seen working for himself for cash while employed by respondent, the applicant argued he was helping friend repair pool fence at relevant time

Following the applicant making an application to the FWC in regard to unfair dismissal multiple attempts were made by Commission to notify respondent of proceedings by way of emails, letters and telephone calls.

Commission Simpson was satisfied respondent was aware of application and had ample opportunity to respond, however had chosen not to do so,  on that basis Commission treated application as uncontested. The respondent was found not to have complied with Small Business Fair Dismissal Code.

The Commissioner could not be satisfied that the respondent believed on reasonable grounds that applicant’s conduct was ‘sufficiently serious to justify immediate dismissal’. If the dismissal could have been regarded as with notice, applicant had not been warned, given an opportunity to respond, nor given a valid reason as to why his employment was at risk.

The Commission accepted that applicant had not done a cash job and found no valid reason for termination as the Service Manager and Managing Director had notified applicant of reason for termination, but each accused the other of witnessing alleged conduct and being decision maker. It was found that the applicant was denied procedural fairness and as a result the dismissal was harsh, unjust and unreasonable.

It was considered that reinstatement was inappropriate, compensation of $19,640 gross taxed, plus 9.5% superannuation was ordered.

Also remember timely and professional workplace investigations into misconduct may strengthen your case.

Defending Unfair dismissal applications
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/
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Misconduct Investigation Allegation Letters. When AWPTI conducts an investigation we provide all the documentation including letters of allegation to our clients however I am often asked “Should we provide some sort of letter or email with the allegations?”
The answer is always YES.

Why: Recently I published an article about allegation letters, procedural fairness and why it is essential…Read more

In the case at the FWC of K v K&S Freighters Pty Ltd [2016] FWC 1555 (24 March 2016) an employee of 30 years was dismissed over misuse of a fuel card.  Commissioner Bissett found there was a valid reason for dismissal but there had been was a lack of procedural fairness.

The commission was satisfied the applicant sent freight without consignment notes, sent freight without charge and used a fuel card while he was on annual leave. Mr Kirkbright’s argument that this was how it had always been was not satisfactory.

Lack of procedural fairness

The Commissioner found that Mr Kirkbright was not advised that his conduct was an issue or were being investigated. In addition he was not provided with an opportunity to consider what was being alleged or the opportunity to respond.

The commission also considered that the HR department should have been better prepared for the meeting where Mr Kirkbright was dismissed:

“Whilst Mr K’s language in the meeting of 17 August 2015 leaves much to be desired; he displayed an appalling lack of respect for his manager and co-worker and this was the first time he had been confronted with the allegations. His reaction was not outside the realm of possibilities and should have been foreseen. The human resource manager, if she had not, should have walked the HR officer through what to do in such a circumstance.”

“The meeting should have been halted, Mr K given the allegations in writing and he should have been given an opportunity to respond either in writing or in a meeting at a future date (which could have been in a couple of days).”

The Commission found that the lack of procedural fairness and long service of the employee were both relevant.

On providing an opportunity to respond the commission said:

“In Crozier v Palazzo Corporation Pty Ltd… the full bench said:  As a matter of logic procedural fairness would require that an employee be notified of a valid reason for their termination before any decision is taken to terminate their employment in order to provide them with an opportunity to respond to the reason identified…”

Mr Kirkbright sought reinstatement but it was considered inappropriate. The matter was set down for compensation to be considered.

Later in Kirkbright v K&S Freighters Pty Ltd [2016] FWC 2743 (4 May 2016) the Commission ordered compensation in the amount of $11,624.25 plus superannuation.

Misconduct Investigation Allegation Letters – Lessons for employers

  • Procedural fairness cannot be ignored, it requires an employer to provides any employee accused of misconduct with a chance to respond and put their side or version of events forward before any final decision is made.
  • Don’t take short cuts, it’s not worth it in the long run.
  • If you are not sure what to do, get help, call an expert.

As I mentioned when we conduct investigations we ensure that all the documentation is legally complaint and that procedural fairness is afforded. If you wish to conduct investigations into misconduct internally I recommend;

  1. Have your people, HR professionals or managers trained. AWPTI can provide 1 and 2 day investigation training courses for HR professionals or managers – Read more
  2. If you have an understanding of the investigative process make sure all your documentation is complaint. For those that wish to DIY we have created an Investigation Document Toolbox – Read more
  3. Read our TOP TEN tips for workplace Investigations Misconduct, Complaints and Grievances – Read more

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/

 

Email misuse dismissal fair

Email misuse dismissal fair – Email and misconduct – unfair dismissal case confirms the importance of trust and confidence

Where conduct is so poor that it destroys the trust and confidence essential in an employment relationship, the FWC will find that dismissal is not unfair.

The case of Georgia Sologinkin v Cosmetic Suppliers Pty Ltd T/A Coty [2017] FWC 1838 serves as a warning about:

  • Sending an email to the wrong person.
  • Making disparaging or offensive comments in emails
  • Being careful when wording and sending emails.

Accidentally sending an email to the wrong person is not an uncommon event, especially if the recipient is the email is the target of comments best left unsaid or unfiltered thoughts.

Ms Sologinkin employee with a long and previously unblemished employment record did just that and it did not end well

Senior Deputy President Hamberger found against Ms Sologinkin’s unfair dismissal application. In considering the matter, the Commissioner affirmed the importance of trust and confidence in the employment relationship and that it can be destroyed by one act of sufficient gravity

The email

Ms Sologinkin worked for Cosmetic Suppliers since May 2000, as a junior sales representative then Team Leader and then State Sales Manager.  She had never been subject to any issues of misconduct.

On 9 November 2016, she sent an email described as “intemperate and inappropriate” to the Customer Services Team describing them as “totally incompetent”.

As set out in the judgment:

“On the same day, the applicant composed an email to a friend of hers who had commenced working as a contractor for the respondent.  In this email, she made a number of disparaging ‒ and, in at least one case, highly offensive ‒ comments about some of the clients her friend would be dealing with.  This included a reference to one of the clients’ ethnicity and national origin.  The email included the email addresses of the clients.”

As she had intended, the email was sent to her friend and colleague.  Unfortunately, it was also accidentally sent to the clients.  Once she became aware she had sent the email to the clients, she made attempts to retrieve it, her attempts failed.

Upon receiving the email, one of the named clients tried, without success, to contact the employee by telephone.  He then rang the sales director and subsequently sent an email about the matter which said there “needs to be a consequence to this stupidity, await your advice”. 

The following day the client stated that they would no longer deal with any company represented by Ms Sologinkin; adding to this, another disparaged client did the same.

The employer issued a letter to Ms Sologinkin requiring her to attend a disciplinary meeting on 14 November 2016.  The letter advised Ms Sologinkin that sending the email to the clients was highly inappropriate and a breach of the employer’s Code of Conduct and furthermore could amount to serious misconduct. That meeting did not occur as Ms Sologinkin was on work-related stress/sick leave and unfit for work until 18 November.

The employer requested a written response from Ms Sologinkin to the allegations in the letter by close of business 15 November 2016.  To this Ms Sologinkin responded with a detailed email that cited a number of matters, including that her reasons for the mistake include that she had not slept well before the day of the email. She further said she was distracted, having had two others emails open at the same time and was handling complaints about the customer service team’s inability to perform their duties.

She conceded she had found it difficult to cope with her role ‘for some time’ and had been receiving medical treatment for post-traumatic stress disorder since 2015.

In further background, the employee had been placed on an informal performance improvement plan due to failure to meet key performance indicators for sales, and poor time management, which she said was due to a lack of management support and organisational changes. By the end of 2015 her performance had improved and she was no longer on a plan.

The employer considered her explanation but decided to dismiss her, concluding that the seriousness of the conduct was such that the trust and confidence necessary in an employment relationship had been lost.

SDP Hamberger found in at least one case the employee made ‘highly offensive’ remarks. One remark included a reference to a client’s ethnicity and national origin. SDP Hamberger accepted that the email was sent by mistake but given she occupied a management position she must bear the ultimate responsibility for her actions. He found the company had a valid reason to terminate and had conducted a fair investigation into the matter

SDP Hamberger accepted that there was a valid reason for termination and that even though the employee had;

  • a lengthy period of service with the employer,
  • an unblemished employment record
  • was contrite,

Overall the gravity of this misconduct, coming from someone whose job was to “manage relations with key customers”, was such that dismissal was not harsh.

The Commissioner held:

“…whatever the explanation as to how it happened, the ultimate responsibility must be borne by the applicant.  The email not only had the potential to but clearly did in fact damage the respondent’s reputation and its relations with its clients.” 

Not all mistakes destroy trust and confidence

Termination of employment is never a step to be taken lightly by an employer.  A longstanding employee with an unblemished employment record will, in many circumstances, be able to successfully argue that a termination was harsh and that other disciplinary outcomes falling short of termination should have been actively considered and applied.

However, where conduct is so damaging to the business and the trust and confidence necessary in an employment relationship, the Commission will be more willing to find that dismissal was not unfair and an appropriate outcome.

Every unfair dismissal case turns on its facts; it is entirely possible that if the employee was not in a key sales role, where relationships with clients are pivotal, that the outcome may have been different.

It is also an important and timely reminder to be careful and double-check the recipients list of any email that is sent.  And the tone of the email – if in doubt don’t press send

Link to the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc1838.htm

AWPTI – workplace investigations 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

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

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.

You can contact me on 02 9674 4279 or phil@awpti.com.au

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

Social media case

Social media case – Recently at the Fair Work Commission in the case of Renton v Bendigo Health Care Group [2016] FWC 9089, it was highlighted that employers need to consider the appropriateness of penalties and having policies in place when considering a decision to terminate employees for misconduct and is a reminder about the use and abuse of social media in the workplace

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc9089.htm

In the Renton case, an employee of Bendigo Health Care Group was found to have been unfairly dismissed despite ‘tagging’ two of his colleagues in an offensive and sexually explicit video post on Facebook and on the same day had also left blobs of sorbolene cream and tissues on the desk of a colleague tagged in the video.

That colleague complained about the two incidents and the employer dismissed the employee for serious misconduct.

Commissioner Bissett found that the employee had:

  • negatively affected the health and safety of colleagues
  • engaged in conduct that had the potential to damage the employer’s reputation
  • exposed his colleagues to humiliation and ridicule at work.

The Commissioner stated,

“Whilst Mr Renton is apologetic, he has displayed a lack of insight into the effect of his post on his colleagues – even at the hearing of his application he failed to appreciate that it caused real offence. To this extent, I am not sure the basis of his apologies. He compounded his Facebook misdeed by placing blobs of sorbolene cream on Mr Christie’s desk. That act was boorish.

Having said this, however, I consider, on fine balance, that the decision to terminate Mr Renton’s employment was harsh in that it was disproportionate to the gravity of the misconduct.”

Mr Renton has no history of misconduct at work. Whilst it is apparent he and Mr Christie have exchanged ‘jokes’ in the past, not dissimilar to the sorbolene incident, this has gone unremarked by either of them, their colleagues or management (if it was aware of these ‘jokes’). Further, the Facebook posting and its naming of work colleagues and ‘work’ is a one-off incident. Mr Renton had not drawn such connections in the past. Whilst Mr Renton’s insight into the incident may be questioned it can only be hoped he has learnt from his conduct. Further, there was no suggestion that the incident had any adverse effect on any other aspect of Mr Renton’s work.

Commissioner Bissett held that the behaviour was a one-off nature and that there had been a lack of previous misconduct. Having found the dismissal of the employee to be harsh and as a result Mr Renton was unfairly dismissed.

Commissioner Bissett considered that the incident was an isolated one and his employment history was otherwise spotless.

Getting termination right.

This decision suggests that employers must consider a number of issues when deciding to terminate an employee such as:

  1. The nature of the incident
  2. Past behaviours and employment history, including length of service
  3. If policies are in place and did the behaviour breach the policy
  4. Are options other than termination more appropriate.
  5. Does the punishment fit the crime, as matter also addressed in Dawson v Qantas Airways Limited (2016) FWC 8249 – http://awpti.com.au/fwc-unfair-dismissal/

It is recommended that employers have in place

  1. A clearly written social media policy
  2. Training that clearly outlines the contents of the policy so that employees understand the behavioural expectations of the employer
  3. Investigate matters of this nature thoroughly and impartially before making final decisions.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

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.

You can contact me on 02 9674 4279 or phil@awpti.com.au

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator

FWC Unfair dismissal

The importance of considering other factors when terminating employees

FWC unfair dismissal – A Qantas flight attendant who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission after it found that the decision to terminate his employment was harsh.

Link to case – Dawson v Qantas Airways Limited (2016) FWC 8249 https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc8249.htm

At the FWC Deputy Commissioner Lawrence concluded that the Applicant Mr Dawson was dismissed because he stole property belonging to Qantas and initially lied about how the alcohol came into his possession, he changed his explanation during an investigation into the matter.

While the amount of alcohol stolen by the Applicant was of small value, Qantas stated that they have a zero tolerance policy to theft including accidental theft. For these reasons, the FWC found that the conduct of the Applicant was a valid reason for termination.

When reviewing the procedural aspects of the termination, the DC Lawrence found that Qantas carried out proper investigation and disciplinary processes. However he also had an obligation to consider “any other matters” to reach a finding as to whether the termination was ultimately harsh, unjust or unreasonable.

As a general rule, the aim of considering what the FWC considers to be “any other matters” it must ensure that a “fair go all round” has been given to all parties.

In this case, the Deputy Commissioner Lawrence considered the factors argued by the Applicant should lead to a finding that his termination by Qantas was disproportionate to the crime committed including;

  • the Applicant’s had worked for Qantas for 28 years with an unblemished record of service as a long-haul flight attendant;
  • the value of the items stolen was small.
  • the age of the Applicant, at 50 it was considered that it would difficult for Mr Dawson to obtain future employment especially as a flight attendant;
  • While the Applicant initially gave an incorrect explanation of his actions, he did correct it later.
  • the Applicant argued that he had a number of medical and family issues prior to the incident.

Notwithstanding that the procedural aspects of the termination were fair and compliant with the Fair Work Act 2009, after taking these “other matters” into account, the Deputy Commissioner Lawrence concluded that the dismissal was harsh.

As a result of Qantas’ failure to properly consider the Applicant’s circumstances and the impact that the termination would have on the Applicant, the FWC felt it appropriate to award the Applicant compensation.

The FWC noted that the Applicant could have earned $1,011,930 for the remainder of his working life. Acknowledging the valid reason for termination and proper procedures, the FWC reduced the amount of compensation to $500,000.

The Applicant’s compensation was reduced again by the FWC to 26 weeks’ pay in accordance with the maximum compensation cap in the unfair dismissal jurisdiction under the FW Act.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

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.

You can contact me on 0409 078 322 or phil@awpti.com.au

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

 

Adverse action and award compliance – the cost of getting it wrong

The director of a Melbourne brothel has been ordered to pay a former receptionist compensation and penalties totalling $175,000 after subjecting a former receptionist to unlawful adverse action and failing to pay award entitlements.

In the case of Rosa v Daily Planet Australia Pty Ltd, the Federal Circuit Court accepted that the brothel’s sole director was knowingly involved in breaches and ordered that he was liable for the compensation awarded as well as personally responsible for part of the penalty.

The applicant Ms Rosa worked as a receptionist and had worked for the brothel from July 2008 until December 2011.  Ms Rosa was a single mother and had negotiated particular shifts.  Ms Rosa was paid a flat rate of pay, worked four days per week for 10.5 hours per day.  She was not paid sick leave, annual leave or other benefits beyond her hourly rate.  Further, it was noted she did not take her breaks nor was she paid applicable overtime rates.

After 3 years of employment, Ms Rosa was directed to sign an employment contract which provided that she was a casual employee.  When she challenged the proposed contract terms, her shifts were changed and she was subsequently told there was no more work for her because she didn’t have a manager’s licence that is was claimed was a requirement under the relevant legislation that the business be supervised by an approved manager at all times and Ms Rosa was only a few months away from being eligible to obtain a licence.

In the judgment, the Court noted that Ms Rosa had been employed for a significant period of time without a manager’s licence, yet when there was only two months before she could obtain a manager’s licence she was terminated for this reason.

The Court did not accept the Respondents defence who argued that the provisions of the Sex Work Act 1994 (Vic) that mandated that a brothel must at all times have an “approved manager” on site, and that the reason the Applicant was dismissed was because she did not hold a manager’s licence due to a drug offence

The Court agreed with Ms Rosa’s submissions that the termination occurred as a result of her refusal to sign the employment agreement. This agreement would have converted her employment to casual employment and she risked losing shifts she had specifically negotiated with the Respondent.

The Court found that the Respondent took adverse action in threatening to alter her employment arrangements and threatening to dismiss Ms Rosa and then subsequently dismissing her.

The Daily Planet Case should serve as a reminder to employers that they cannot terminate, threaten termination or detrimentally alter the position of the employee (such as changing an employee’s shifts) on the basis that they chose to exercise a workplace right.

It also reminds employers that the Courts will look to the “motivation” of the employer in its decision to take adverse action against another employee.

AWPTI – workplace investigations Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

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.

You can contact me on 002 9674 4279 or phil@awpti.com.au

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 

 

 

Social media – unfair dismissal

Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186

Social media unfair dismissal. A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

AWPTI can assist you with full investigation services – http://awpti.com.au/investigations/

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations – misconduct, bullying, harassment & sexual harassment investigations

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

If your organisation is encountering these types of issues and you are not sure what to do, I recommend that you contact an expert for assistance with training and potential investigations.

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.

You can contact me on 0409 078 322 or phil@awpti.com.au

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigation

social media unfair dismissal

Minimum employment period

In the unfair dismissal matter of Cole v Endless Solar Operations P/L the respondent, a small business employer, raised a jurisdictional objection regarding whether the applicant had completed the minimum employment period.

The applicant’s employment was terminated effective from 27 May 2016. The applicant had commenced performing IT work for the respondent as an independent contractor on 30 March 2015. The applicant submitted that he became a casual employee shortly thereafter; the respondent submitted that the applicant remained engaged as an independent contractor. The applicant was employed in the position of IT and Operations Manager effective from 13 July 2015, pursuant to the letter of offer of employment.

The Commission considered whether the work between March and July 2015 was performed by the applicant as a casual employee or as a contractor, and if it could be counted towards the minimum employment period. The Commission found evidence of an employment relationship, concluding that during the period between March and July 2015 the applicant was a casual employee, and that the work between March and July counted as service.

The Commission was satisfied that the applicant had completed the minimum employment period and was a person protected from unfair dismissal. The respondent’s jurisdictional objection was dismissed

Read decision [2016] FWC 6663 http://www.fwc.gov.au/decisionssigned/html/2016fwc6663.htm

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

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

minimum employment period

 

 

Unfair dismissal recently at FWC

Unfair dismissal hearing on 20 January 2016 in Sydney, the FWC found that a HR manager’s decision to dismiss an employee who couldn’t perform the inherent requirements of her role was reasonable, despite some “regrettable” lapses in process, the Fair Work Commission has ruled.

In Sao Duarte v The Paraplegic & Quadriplegic Association of NSW (full text here) involved an employee who in March 2016 emailed the CEO and advised that interpersonal issues at work were adversely affecting her performance and health. The CEO advised that he would monitor the situation.

A month later the HR manager asked the employee to attend a fact-finding meeting about allegations she had altered a client’s weekly medication pack without authorisation. The employee took leave the next day, claiming that that she was suffering from a workplace injury that had been exacerbated by bullying, she did not return to the workplace.

The employer subsequently deemed that Ms Duarte was incapable of performing the inherent requirements of her job due to a major depressive disorder, she was dismissed on the HR manager’s advice after she failed to respond to a show-cause request.

Ms Duarte claimed in her application to the FWC that her dismissal was unfair because she had been subjected to bullying over a  period of time, and was provided with no assistance after complaining about the bullying. She further stated that the fact-finding meeting made her feel targeted, as if she were being “groomed for dismissal”.

She didn’t deny being unable to perform the inherent requirements of her job at the time, but said she might have returned to full duties in the short-to-medium term.

The HR manager gave evidence to the FWC that the dismissal decision was based solely on medical evidence about Ms Duarte’s inability to do her job, even with modifications, and insisted her performance and conduct were irrelevant.

The HR manager said that after seeing references to alleged bullying in the employee’s medical report, she conducted a “fulsome” review (at 47) of her employment records and found no formal complaint. She claimed she only became aware of the employee’s email to the CEO after the dismissal.

Commissioner Booth found it was reasonable for ParaQuad to dismiss the employee after finding she couldn’t carry out the inherent requirements of her role, those requirements required her to be alert, handle emergencies and deal with clients with significant disabilities.

The Commissioner found that it was “regrettable” that the HR manager, having become aware of the allegations, didn’t “extend a conciliatory hand” by, for example, offering to have a conversation with the employee.

“[The manager] effectively asserted that there was no bullying or harassment problem because [the employee] had not followed the correct grievance process,” the Commissioner said.

She described the HR manager’s approach as “form over substance” and said that while it’s preferable for an employee to follow workplace protocol when making allegations, bullying could clearly occur without complaint.

“The art of good human resource practice includes responding to signals as well as addressing issues raised through formal channels.”

The CEO’s failure to take appropriate action, which would “certainly” have involved referring the email to HR, was also regrettable, Commissioner Booth said.

“The CEO said he’d monitor the situation, but gave no evidence of further action. “In my view this was an inadequate response to the concerns raised,” she said.

In dismissing the application, she noted the worker was pursuing a review of her workers’ compensation application, which could prove a more appropriate forum for her grievances.

Lessons for employers

When determining if someone can perform the inherent requirements of their role, employers are advised look to independent medical examinations.

If a complaint of bullying is made it should not be ignored even if it does not fit within the usual process or procedure.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations misconduct, bullying, harassment & sexual harassment investigations

www.awpti.com.au
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Please contact us if you require assistant with the investigation of misconduct complaints to training to help you business avoid such issues. www.awpti.com.au

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator

Unfair dismissal

 

Unfair dismissal recently at the FWC

On 10 January 2017 an unfair dismissal hearing at the FWC in Melbourne upheld the summary dismissal of a worker who tested positive for cannabis after a car accident, despite the arguments that the employee was denied procedural fairness.

In Albert v Alice Springs Town Council, Commissioner Wilson found that the employee was fairly dismissed after having failed the drug test despite the employer not providing Mr Albert with the opportunity to respond to the drug test results.

The Commissioner’s held that the employee’s misconduct outweighed any procedural faults in his dismissal , in addition that it wasn’t obvious that failing to provide the worker with procedural fairness would lead to a finding he was unfairly dismissed.

Facts

In July 2016, Mr Albert was involved in a motor vehicle accident while driving a council truck, he was required to undergo a urine test which identified THC in his system that was 73 times higher than the Council’s ‘cut off’ level of 15 micrograms per litre.

The extremely high reading led the Council to summarily dismiss Mr Albert cited that his behaviour was serious misconduct in that it represented a danger to himself, other workers and the public.

Mr Albert filed an application for unfair dismissal arguing the Council had not provided him with the relevant paperwork when he took the urine test, and refused to give him copies of his results.

Although Commissioner Wilson found the Council had not provided the worker with procedural fairness, he held the dismissal was justified as the Council had a valid reason to dismiss the worker because his job involved safety-critical work.

Despite these defects in the Council’s internal disciplinary process, Commissioner Wilson held the dismissal was not harsh, unjust or unreasonable because the outcome of the disciplinary process would have been the same even if there had been no such defect.

As such Commissioner Wilson found that the seriousness of the worker’s actions outweighed the procedural faults of the Council in its decision to dismiss the worker. Further, had the procedural faults been remedied, and the Council formally put the test result to the worker, it would have been unlikely to affect or alter the ultimate outcome of the matter.

Lesson for employers

In most cases in relation to unfair dismissal, failure to afford procedural fairness before dismissing an employee will, result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee (when considered appropriate) or payment of compensation.

In very clear cases of serious misconduct, a lack of procedural fairness might save you from liability on an unfair dismissal claim, it is recommend that you still ensure that you provide procedural fairness and save yourself the argument later.

Have a well drafted drug and alcohol policy which clearly states what is acceptable behaviour and the consequences of any unacceptable behaviour will assist employers with disciplinary outcomes should an employee record a positive test result

Full decision – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc73.htm.

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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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigator.

Unfair dismissal