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/

 

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

Adverse action unsuccessful

Adverse action unsuccessful in Bayford v Maxxia Pty Ltd [2011] FMCA 202 (12 April 2011) – This case demonstrates that an employer has a right to take fair and reasonable disciplinary action against employees notwithstanding the Act’s adverse action claim provisions.

A call center operator for salary packaging company Maxxia brought an adverse action claim after being dismissed for consistently arriving late and poor work performance.

The Federal Magistrates Court applied the reasoning in the recent Full Federal Court decision of Barclay v Bendigo Regional Institute of TAFE that it was necessary to find the real reason for the employer’s conduct, by looking at all of the surrounding circumstances, as well as the employer’s subjective reasons for making the relevant decisions. The worker argued that the “real reason” for his dismissal was his family responsibilities, which he pleaded as the applicable “workplace right“.

It was accepted that the operator arrived for work on time “about half the time,” and had been issued two warnings from Maxxia about his lateness and performance.

Federal Magistrate Riley did not accept the worker’s submission and held that “it does not follow logically that [the employee’s] lateness was connected with family responsibilities.” FM Riley noted the operations manager had “sufficient reason” to dismiss the operator because of his poor quality work and frequent lateness. The Court was unable to infer in all of the circumstances of the case that the operator’s family responsibilities were a factor in the decision to dismiss him and accordingly the employee’s adverse action claim was dismissed.

Hodkinson v The Commonwealth [2011] FMCA 171 (31 March 2011)

A probationary employee of the Commonwealth Child Support Agency had her adverse action claim rejected after the Federal Magistrates Court found that her dismissal was a result of performance issues and failing to meet performance requirements.

The officer was engaged on a six-month probationary contract in July 2009, she took time off work during this time due to a bulging disc in her back. After four months, the Agency placed the officer on a Work Improvement Plan as she was failing to meet performance targets. The officer protested that the targets had not been adjusted to take account of the fact that she was working reduced hours because of her injury and complained to the Department of Human Services that she felt she was being treated in a discriminatory manner. This led to an informal inquiry which concluded that the agency had not engaged in discrimination.

After a month, the officer had a meeting with managers where the Team Leader recommended that her employment be terminated due to her failure to meet existing targets on dollar value and volume of outbound calls benchmarks set. The Agency formally dismissed the employee on 22 December 2009 on the basis that she had not met the requirements of her probation.

The Agency’s concerns about her performance included unacceptable conduct towards her peers and inappropriate handling of a case that led to a customer complaint that was “extremely serious in nature.

The officer claimed she was dismissed for making a complaint or inquiry in relation to her employment, which is one of the protected “workplace rights” prescribed in the Act. The adverse action was alleged to be:

a) dismissal;

b) injury in employment;

c) alteration of the applicant’s position to her detriment; and

d) discrimination as between the applicant and other employees.

The employee further alleged that in the circumstances her dismissal constituted:

a) disability discrimination under both the Act and the Disability Discrimination Act 1992; and

b) dismissal on the grounds of temporary absence from work because of illness or injury contrary to the Act.

The officer sought reinstatement, compensation and the imposition of a pecuniary penalty on the Agency, payable to her.

Federal Magistrate Cameron rejected the officer’s claim and accepted that the employee’s failure to meet all of the requirements of her probation was the real basis of the decision to dismiss her. FM Cameron also accepted that the officer’s sick leave and physical injury formed no part of the reason for dismissing the employee and nor did the employee’s related short-term absences.

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/

 

 

 Recently at the FWC – Anti Bullying matter

Anti Bullying order.

Purcell v Ms Mary Farah and Mercy Education Ltd t/a St Aloysius College

Read decision [2016] FWC 2308.

This application for an anti bullying order was made by a teacher who was also the OH&S representative at the school.

The applicant alleged that she had been bullied at work by the Principal of the College. The Principal was appointed in 2013 with a mandate from the Board of Mercy Education to effect change and arrest declining enrolment; however some staff were resistant to the change and preferred the status quo.

The applicant gave evidence that she became increasingly concerned about Mercy Education’s bullying policy and in May 2013 raised the issue of bullying and the need to update the policy.

The College’s Business Manager agreed to review the bullying policy by the end of the year however this did not eventuate; the applicant raised the issue again in April 2014. The Deputy Principal was listed in the bullying policy as the complaints officer however there was no Deputy Principal at the College, as the previous Deputy Principal had resigned in 2013 after the Principal had been appointed.

The bullying policy was finally revised and re-issued in 2015 after the applicant filed complaints in December 2014. The applicant identified a number of incidents occurring from late 2013, and continuing after her return from long service leave in mid-2015, which she maintained was repeated unreasonable behaviour by the Principal.

The Commission concluded that four of the incidents which the applicant complained about, taken together, amounted to repeated unreasonable behaviour. The Commission found that the conduct was likely to have caused the applicant distress and that the behaviour created a risk to the health and safety of the applicant. The Commission found that the applicant was bullied at work.

Lessons for employers:

  1. Ensure your policies are up to date and compliant, if you don’t have the time or expertise, get help – see www.awpti.com.au/hr-support/
  2. Investigate complaints about bullying in a timely and professional manner, if you are not sure what to do, call an expert – www.awpti.com.au/investigations/

The Commission considered what orders (if any) should be made, finding the relationship between the applicant and the Principal was an mutually tense the Commission held that interpersonal relationship disputes are best resolved through the efforts of the parties, and perhaps assisted by some form of .facilitation, dispute resolution intervention or mediation.

The Commission held that some form of reconciliation was much more likely to produce a lasting, positive improvement in the working relationship between the parties than any order could.

The Commission proposed that the parties engage with each other in a series of mediated or facilitated meetings with the aim of repairing their relationship, and engaging in a dialogue that would accommodate an ongoing professional working relationship, and a safe working environment. If the parties were unwilling to engage with each other, then the Commission advised that either party could request the expeditious hearing and determination of the question of whether orders should be made.

Lessons for employers and employees

  1. In some cases a dispute resolution invention might better option to deal with complaints than an investigation especially in matters of a she said, he said nature with little of no other evidence. Each matter must be assessed on it merits.
  2. Investigations tend to have winners and losers, a dispute resolution intervention has the potential to create a win win situation.
  3. A a dispute resolution intervention can also be a more cost and time effective solution.

If you have received a complaint and are not sure what to do, go to the Australian Workplace Training & Investigation home page www.awpti.com.au and request our Compliant Analysis Chart. The chart will assist you in deciding the best course of action to take when you have received a complaint.

AWPTI can also assist you with dispute resolution interventions – www.awpti.com.au/disputes/

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/

You can contact AWPTI – enquiries@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.

 


Dismissing employees – legitimate reasons but beware you must adhere to the process and afford procedural fairness.

Dismissing employees can be stressful, difficult and complex process. It is a decision that carries legal risks and can take a significant amount of time and resources.

When dismissing employees who earn less than the defined high income threshold currently $138,900 from 1 July 2016 (see http://www.afei.org.au/node/109027 or who are covered by an award or enterprise agreement, care needs to be taken to minimise the risk of an unfair dismissal claim in the Fair Work a state commission

 

To protect your business when dismissing employees in the case of misconduct you must;

  • Ensure that you have a valid reason to terminate an employee.
  • Act in a fair and reasonable manner during the process.
  • Ensure that you have provided the employee procedural fairness.
  • Consider the employees records and circumstances
  • Follow any applicable rules regarding dismissal, notice of termination, and final pay, including accrued outstanding leave.

 

With a legitimate reason, a proper procedure, and quality advice, you can feel secure in terminating an employee with minimised risk.

Below are four valid reasons for dismissing an employee.

1. MISCONDUCT

Misconduct can refer to a range of behaviour including breaching company policy and inappropriate behaviour that leads to Dismissing employees.

Serious misconduct includes theft, fraud, assault, other unlawful activity and any wilful or deliberate conduct that is fundamentally inconsistent with continuation of the employment, and conduct that causes and serious and imminent risk to health and safety or the reputation, viability or profitability of the employer’s business.

Your company policies, procedure or Code of Conduct should be clearly set out so you have grounds to take action. If you do not have these I strongly advise that you seek assistance and HR support, AWPTI can assist – http://awpti.com.au/backup/hr-support/

You must have evidence that misconduct occurred and that efforts were made to formally warn the employee about their misconduct. You don’t need to give any warnings in the case of serious misconduct before you can terminate, but you do need evidence and procedural fairness.

It is recommended that if termination is a likely outcome a thorough investigation is carried out to ensure you have the evidence and that procedural fairness (meaning giving the employee the opportunity to respond to allegations about their conduct) is afforded. AWPTI can assist with investigation services http://awpti.com.au/backup/investigations/

In cases of serious misconduct, employers do not have to provide any notice of termination. However, as this is a drastic measure, you need to be sure you have a sound basis and valid reason, having afforded procedural fairness. If you are unsure the employee may be suspended while and investigation takes place

2. INCAPACITY

Capacity relates to an employee’s ability to carry out the requirements of the job. In order to use incapacity as a legitimate reason to terminate an employee, you need to identify the core duties of the job position and assess the employee’s ability to perform them. In doing so, you must ensure that you are not unlawfully discriminating against the employee by reason of illness or some other incapacity.

Once again, you need evidence that a lack of capacity exists and that reasonable measures were taken to find a solution or provide alternative duties. This is especially important in the case of disability or medical incapacity.

It is very important that you have clearly written position description that clarify that nature of the position and the responsibilities of the employee. If you do not have clear and current position description AWPTI can assist – http://awpti.com.au/backup/hr-support/

3.POOR PERFORMANCE

Managing poor performance can be a risky process. A structured and well-prepared performance management plan or improvement procedure can protect you from ending up on the receiving end of a bullying or unfair dismissal claim.

Identify the performance problem and formally discuss it with the employee. You need to give concrete examples of poor performance rather than general comments about their productivity. Give them the opportunity to respond, advise them on how they can improve their performance and give them time to do so. Most importantly, you need to document the process.

Ensure that you can demonstrate a well-established performance management process in case a claim is made against you. Check contracts, industrial agreements, policies and procedures to ensure you are complying with any relevant rules or procedures. Verify your facts, ensure you have evidence and again, above all, document everything. http://awpti.com.au/backup/hr-support/

4. GENUINE REDUNDANCY

Redundancy is a valid reason for termination. You need to show that the employee’s position is no longer required to be performed by anyone because of changes in the operational requirements of your business.

Protect your business from an unfair dismissal claim by making sure you follow any consultation requirements outlined in an applicable award or registered agreement.

You should also have explored all reasonable opportunity to redeploy the employee in another position. It is best practice to consult employees about redundancy and redeployment regardless of the right to be consulted under an award or enterprise agreement. Affording empathy to employees who are adversely affected by redundancies goes a long way in minimising the risk of claims.

AWPTI With all areas of workplace investigations, training and HR support that are essential when dismissing employees.

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/

www.awpti.com.au

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.

The importance of position descriptions

www.awpti.com.au/hr-support/

It is important for employers and employees to be very clear as to what are the relevant position descriptions and responsibilities for the employee’s job.

A couple of recent cases before the FWC have highlighted the need for employers to ensure that position descriptions accurately reflect the role and responsibilities of employees especially those who are paid over the high income threshold.

In the recent matter of Mitchell Graham v Globus Medical Australia Pty Ltd [2016] FWCFB 5495 before the Fair Work Commission, Mr Graham’s employment was terminated on 25 November 2015 and on 8 December 2015 he filed an unfair dismissal remedy application.  

On 24 December 2015, Globus filed its Employer Response claiming that Mr Graham’s salary exceeded the high income threshold and that he was not covered by an industrial award or agreement. There was no dispute between the parties that Mr Graham’s annual rate of earnings was above the high income threshold.

In determining the jurisdictional objection argued by Globus, the Senior Deputy President was required to determine if Mr Graham’s employment was covered by an award, which would establish Mr Graham as a person protected from unfair dismissal. Mr Graham asserted he was covered by the Commercial Sales Award 2010 (Award) as a “Commercial Traveller.”

At the hearing in the first instance Senior Deputy President Drake was satisfied on the evidence before her that Mr Graham spent a considerable amount of time away from the Globus office for a multitude of reasons including training, selling, and preparation of surgical equipment and provision of technical support. That evidence is consistent with Mr Graham’s job description.

However, Senior Deputy President Drake was satisfied that Mr Graham’s duties largely concerned the marketing and/or sales of Globus products an explicit or implicit requirement by the enterprise for an employee to give precedence to a particular task does not necessarily change the principal purpose for which that employee is engaged.

After having considered the evidence Senior Deputy President Drake was satisfied that Mr Graham was principally employed in a managerial capacity and therefore that he was not covered by the Commercial Sales Award 2010 when employed by Globus.

Mr Martin sought permission to appeal this decision; permission was refused on 2 September 2016.

A similar situation and outcome arose in Forkes v Amristar Solutions P/L [2016] FWC 5913

Lessons for employers, ensure you have clear and update position descriptions in place that set out the role and responsibility and where necessary unsure that employment contracts are consistent.

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, Principal of Australian Workplace Training and Investigation – www.awpti.com.au  is a highly experienced and skilled HR professional who can provide assistance with  drafting policies & procedures, position description and employment contracts, performance management and recruitment. www.awpti.com.au/hr-support/

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 a suitability qualified and experienced workplace investigator.

 

 

 

HR Support – Does your business have up to date and compliant workplace polices in place?

HR Support – In the recent case of Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] Fair Work Commission found that an employee who consumed cannabis before attending work was not unfairly dismissed for breach of the employer’s ‘zero tolerance’ drug and alcohol policy.

The applicant, Mr Clayton was employed by Coles at a distribution centre his job required him to operate manual handling equipment. Coles classed the distribution centre, as a high risk environment, had a ‘zero tolerance’ drug and alcohol policy.

in January 2016, Mr Clayton was involved in a forklift incident, it was accepted that the incident was not his fault; however Mr Clayton underwent an oral fluid drug test that returned a positive result for cannabis. Further testing confirmed the on-site test result.

On 1 February 2016, Coles conducted a disciplinary meeting and provided Mr Clayton with the opportunity to show cause as to why his employment should not be terminated. After considering Mr Clayton’s response, Coles terminated his employment summarily without notice or payment in lieu.

Mr Clayton argued that the dismissal was unfair because;

  1. He was advised during the induction training that he needed to ensure that he did not smoke marijuana within 3 to 6 hours of the commencement of his shift and he had complied with this.
  2. He reasonably believed that he complied with Coles’ drug and alcohol policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work.
  3. His consumption of cannabis was linked to workplace stress and was part of his strategy to manage that alleged stress.

 

The Commission found that Mr Clayton’s dismissal did not constitute unfair dismissal because:

  1. There were valid grounds for Mr Clayton’s dismissal. The Commission concluded that it was reasonable for Coles to have a zero tolerance drug and alcohol policy that should be consistently applied because of:
  2. The nature of the workplace: a busy environment with various vehicles and machinery being operated;
  3. the work health and safety risks associated with employees working under the influence of drugs in this type of environment; and
  4. the lack of an objective test for determining Mr Clayton’s impairment.
  5. Mr Clayton was notified of the reason for his dismissal.
  6. Mr Clayton was afforded a proper opportunity to respond to the allegations. It noted that the meeting on 1 February 2016 was adjourned to allow Mr Clayton time to consider the allegations and provide a response.
  7. Mr Clayton was accompanied by a support person in discussions concerning the matters leading to his dismissal.

The Commission held that while the use of cannabis for pain relief may be considered a mitigating factor, that factor needed to be weighed up in circumstances where Coles had a confidential scheme and policy that encouraged self-reporting problems without sanctions. The Commission also found that the employee used cannabis for recreational purposes.

While the Commission also acknowledged that there were potential dangers for an employer in providing information about detection periods as this may detract from the zero tolerance message, any information provided to Mr Clayton by Coles did not provide a mitigating factor because:

  1. The window of detection was given as an indicative guide only and could not reasonably be expected to represent a guaranteed safe or reliable withholding period given the context in which it was provided.
  2. The responsibility upon an employee not to attend work with any detectable drugs in their system was clear and understood.
  3. Mr Clayton was advised that if in doubt, he should not attend for work.

The Commission found that Mr Clayton had consumed cannabis on the morning before his shift, and could not be confident that his system would be clear of the drug when he attended work. He was therefore, at best, recklessly indifferent to his potential to breach the zero tolerance policy, and any confidence to the contrary could not be soundly based.

While the Commission held that the lack of notice or payment in lieu of notice would usually be a factor strongly supporting a finding that the dismissal was unfair, this was not decisive here. This was because Mr Clayton had misled Coles about the timing of his consumption of cannabis and could not have legitimately relied upon the indicative window of detection.

Lessons to be learned for employers

  • This case highlights the importance of having a comprehensive drug and alcohol policy that is consistently applied.
  • It is advisable to provide employees with training that clearly outlines their responsibilities in relation to workplace expectations and behaviours
  • Get good HR Support

If you organisation does not have up to date and complaint workplace polices in place and training for your employees, please contact AWPTI and allow us to assist you with HR Support – http://awpti.com.au/hr-support/

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 for HR Support

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.