Workplace Investigation Terminations Unfair dismissal

The recent decision of Jay Higgins Coles Supermarkets Australia Pty Ltd T/A Coles at the Fair Work Commission highlighted the importance for employers about being clear about the reason for the dismissal.

In this matter, Coles submitted that the explicit text messages sent by Mr Higgins resulted in a serious breach of the Code and Equal Opportunity Policy (EO Policy). Specifically, that by sending the explicit text messages to his supervisor Mr Lacey, Mr Higgins engaged in behaviour that was considered to be harassment due to its offensive and sexual nature. Coles submitted this resulted in a serious breach of his duty to treat everyone with dignity, courtesy and respect.

Mr Higgins submitted that when taking into account the context in which the text messages were sent, it could not be satisfied that he engaged in conduct amounting to sexual harassment towards Mr Lacey. Mr Higgins relied on the section of the Equal Opportunity Policy that states as follows:

“Behaviour that is based on mutual attraction, friendship and respect is not likely to be sexual harassment, as long as the interaction is consensual, welcome or reciprocated.”

Mr Higgins submitted that he and Mr Lacey had a personal friendship outside of work, and that the explicit text messages were sent on a personal level to Mr Lacey on private phones outside of work hours. Mr Higgins submitted he had sent messages of a similar nature to Mr Lacey in the past, and Mr Lacey had found such images amusing. Mr Higgins submitted that the images he sent on 5 September 2016 were not unwanted, but rather were endorsed by Mr Lacey. Mr Higgins also submitted that Mr Lacey’s response to the first text message on 5 September encouraged him to send further text messages.

When the manager responded negatively to the image of a penis in a bike chain, Mr Higgins did not sent any further images.

As a result, the commissioner found the conduct did not fall within Coles’ definition of sexual harassment, which excluded behaviour based on friendship as long as it was “consensual, welcome or reciprocated”.

But he found sending such explicit images was “clearly conduct inconsistent with the requirement of the code to treat others with dignity, courtesy and respect”.

Together with Mr Higgins’ lack of contrition and aggressive comments to his supervisor after he was warned over the images, he concluded Coles had a valid reason for dismissal and found the dismissal was not unfair.

Commissioner Simpson held that “The fact that Mr Higgins refused to acknowledge that this conduct could ever be inappropriate if sent from a private mobile phone, leads me to accept Coles’ submission that it cannot reasonably hold confidence in Mr Higgins’ ability to comply with its core values. I am satisfied Mr Higgin’s misconduct was serious.”

In this case it was found that Coles had a valid reason for the dismissal other than the initially alleged sexual harassment. Had Cole gone alone with the sexual harassment allegation the outcome may have been different.

Lesson for employers

  • Be careful when investigating matters such as sexual harassment that the behaviour is consistent with the definition of sexual harassment.
  • Be careful that organisational policies reflect the accepted or legislated definition of misconduct, bullying, harassment and sexual harassment.
  • If you are unsure call in an expert – http://awpti.com.au/investigations/
  • Ensure that all employees undertake training in what is and what is not misconduct, bullying, harassment and sexual harassment – http://awpti.com.au/employee-training/

Workplace Investigation Terminations Unfair dismissal

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/

 

 

Managers HR Professionals Investigation Training Sydney NSW

We know that bullying, harassment and sexual harassment in the workplace is stressful to the victims, but it is often forgotten that the responsibility for dealing with and/or investigating these matters can also be very stressful on managers and HR professionals.

I wonder if this stress is the cause of investigations either not being done at all or being done in a less than effective manner. Managers and HR professionals are often blamed if they get it wrong, or take to long and you can’t please everyone all the time.

  • As a manager or HR professional you may be the first port of call for someone making a complaint
  • As a manager or HR professional  you may be the person that becomes aware of employee misconduct
  • It is important that you deal with misconduct and/or receive and deal with complaints in a proper manner
  • You must take some sort of action
  • Types of action can include
    • Informal enquiries
    • Formal investigation
    • Dispute resolution
  • Before you take any action, it is important to understand what the complaint is.
  • Failure to act could result in
    • A breach of a duty of care and a claim of negligence
    • Damage to the health and well being of the complainant
    • Unnecessary stress on all parties
    • Damage to the workplace envoronment
    • Damage to the brand image of the organisation

As you can see a lot rides how managers or HR professionals react to complaints in the workplace. So how can organisations take the stress off managers and HR professionals?, It’s not rocket science it’s a matter of training.

Train you managers to enable them to conduct timely and professional workplace investigations or to recognise when it is time to call in an external expert professorial.

To investigation complaints in the workplace you need to have skills in the following areas;

  • Complaint analysis
  • Investigation planning
  • The investigation process
  • Procedural Fairness
  • Planning and conducting interviews including
    • An understanding of the interview process
    • An understanding of reasonable and appropriate interview techniques and questions
    • How to get the best out an interview
  • Drafting allegations
  • Report writing
  • Making recommendations.

As a manager or HR professional in addition to expertise and skill in the investigation process, you will need an up to date knowledge of the law especially the Fair Work Act and the Work Health & Safety Act and how to apply them to your internal matters and also relate the law to your polices and processes, remember a lot rests on the outcome of your investigation including;

  • The heath of the victim
  • The future of the person subject of the complaint it is it substantiated
  • The future of working relationships in the organisation.
  • Potential for court action in the case of a claim of a breach of a duty of care
  • The potential for for unfair dismissal action if someone is terminated.

Getting it right the first time every time is not a ‘nice to have’ it’s an ‘essential to have’.

Don’t let your managers or HR professionals down. How can your organisation help to limit the stress on managers or HR professionals – get them trained.

Managers HR Professionals Investigation Training Sydney NSW

The AWPTI Investigating Workplace Misconduct PLUS is a 2 day course that covers

  • Reasonable Management Action
  • Types of complaints
  • Why do managers get complaints
  • Investigating misconduct and complaint handling
  • Why investigate
  • Investigation fundamentals
  • The investigation process
  • Planning investigations
  • Interviewing complainants and witnesses
  • Evidence
  • Drafting legally complaint allegations
  • Interviewing respondents
  • Making findings
  • Report writing
  • The Investigation toolbox
  • Interview room set up
  • Interview planning
  • Types of questions to ask
  • Investigative interview technique
  • Analysing and evaluating evidence
  • Role plays with facilitators and actors playing the parts of complainants, witnesses and alleged perpetrators

Course provides participants with:

  • Practical skills to enable HR professionals and managers investigate misconduct and employee complaints in the workplace and to understand and identify the type of complaint and to access the best method to deal with the complaint
  • The opportunity to hear and discuss real investigations
  • The opportunity to work through an investigation based on a real world scenario from receipt of the complaint to final report including interviewing all the parties
  • Analyse scenarios to develop skills to identify issue and formulate investigation and interview plans
  • Develop and practice their interviewing skills by interviewing actors in the roles of complainants, witnesses and respondents
  • Receive feedback on their interviews and tips and tactics from professional investigators.
  • Provide you with the experience to know that even with your training it is time to call in an expert

More details of the course can be found here – http://awpti.com.au/investigation-training/

In House courses

Due to current demand we are conducting these courses internally for organisations that want 4 or more managers or HR professionals with our trainer coming to you are a time to suit you.  Please contact us at enquiries@awpti.com.au

Public courses

We are seeking expressions of interest for a public course to be held in the Sydney CBD in December or January. If you would like to know more and/or go onto our waiting list please contact us at enquiries@awpti.com.au

Managers HR Professionals Investigation Training Sydney NSW – AWPTI – Managers HR Professionals Investigation Training Sydney NSW, Workplace investigation training Sydney and through-out NSW and national wide Misconduct training, bullying training, harassment training & sexual harassment training, dispute & grievance resolution training, management training

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

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/

 

 

 

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The article also stated that;

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

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

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

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

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

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

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

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

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

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

workplace training Sydney, workplace training NSW, workplace training QLD, workplace training Victoria, misconduct training, bullying training Sydney, Workplace training harassment, sexual harassment training, grievance training, management training

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

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

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

Workplace Bullying Harassment Training NSW ACT – Australian Workplace Training & Investigation (AWPTI) provides workplace training tailored to suit your business requirements through-out NSW and the ACT in the areas of;

  • Bullying
  • Harassment
  • Sexual harassment
  • Discrimination
  • Reasonable Management Action
  • Performance management
  • Other forms of misconduct including
  • Misuse of IT, internet and email
  • Misuse of resources
  • Breaches of Code and Conduct and policies
  • Social media
  • Acceptable behaviour at work functions
  • Fair Work Act – unfair dismissal

All of our courses are reality based, our case studies are taken from actual complaints and actual investigations.  Our facilitators are workplace investigators and lawyers who have investigated every type of complaint and grievance imaginable.

We have found that listening to the ‘war stories’ makes the training highly engaging and enjoyable for the participants. Our programs all come with a comprehensive resource workbook.

Workplace Bullying Harassment Training NSW ACT – Our training is designed to help employees at all levels to understand what is and what is not workplace misconduct and to help managers and HR professionals to deal with complaints and take all reasonable stop to eliminate and address misconduct in the workplace in a fair and timely manner.

Our courses provide participants with practical skills to enable employees to recognise what is and what is not bullying, harassment and discrimination and offer strategies to deal with bullying and sexual harassment effecting people at events in the workplace and also the opportunity to analyse and discuss real complaints and investigations

For more details about our
Employee training – http://awpti.com.au/employee-training/
Management training – http://awpti.com.au/management-training/
HR Professionals training – http://awpti.com.au/investigation-training/

Workplace Bullying Harassment Training NSW ACT – Contact us now to book your program enquiries@awpti.com.au

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/