Unfair Dismissal Fair Work Commission Recently

The recent case of Amanda Olesen v Needlework Tours Pty Ltd illustrates some importance considerations for employers when dismissing employees

In this case, applicant Ms Olesen expressed an intention to start own business in meeting with respondent. Ms Olesen used social media and business networking sites to promote new business.  The respondent Needlework Tours stated that they believed applicant was working for new business during work hours.

The Commission found no evidence that suggested that applicant was operating own business or not working as directed and therefore found no valid reason for termination.  In evidence the applicant contented that her employment was terminated via text message and was not notified of reason until after termination and was also not given the opportunity to respond to reason for dismissal.

The Commission considered the Small Business Fair Dismissal Code and found that the fraud allegations were without substance, It also held that a lack of HR expertise and small size of business no excuse for failure to give applicant opportunity to respond

Commissioner Ryan held

“Having taken into account each of the matters referred to in paragraphs (a) to (g) of s.387 and being satisfied that there are no other relevant matters needing to be considered under s.387(h) the Commission decides that the dismissal of Ms Olesen from her employment with the Respondent was harsh and unjust and unreasonable. It was harsh because Ms Olesen had not engaged in the alleged misconduct. It was unjust because Ms Olesen was denied procedural fairness by Mr Laughlin and was given no opportunity to defend herself. It was unreasonable because it was the result of a significant exercise of prejudging an outcome without making any reasonable attempt to apply the principals of a fair go all round.”

Lesson for employers

  • In matters of fraud, potential fraud a careful investigation is recommended to ensure that the misconduct occurred and that the employer is in possession of sufficient evidence to support their claims.
  • Procedural fairness and the right to respond to allegations should be considered to be ‘set in stone’
  • A professional and timely investigation by an expert can save time, money and stress
  • If in doubt call an expert – http://awpti.com.au/investigations/

Unfair Dismissal Fair Work Commission Recently

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

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

Workplace investigation support person

Workplace investigation support person – All you wanted to know about a support person but may have been too afraid to ask.

Workplace investigation support person – It should be noted that under Section 387 of the Fair Work Act, in subsection(d) any unreasonable refusal by the employer to allow a person to have a support person present to assist at any discussions relating to dismissal may be considered as part of the criteria for considering harshness etc.” (Link to s387 FWA)

Although the FWA refers to unreasonable refusal, I recommend always offering a support person to an interviewee whether it is in relation to a disciplinary or performance related matter. If they refuse record the refusal.

So there is no positive obligation under the Fair Work Act to provide a support person, do yourself a favour and avoid the headache, offer and accommodate where possible.  Remember while a workplace investigation maybe another day ending in a Y for you it can be very stressful for the interviewee and a support person may make the process easier for all parties.

What is a support person?
Someone who attends the interview to provide emotional support to the interviewee if need be.

What is the role of the support person?
Generally it is to sit down and be quiet. However a support person can ask questions of the interviewer and in most cases can provide advice to the interviewee if appropriate, but should not answer for the interviewee. They may also speak on behalf of the interviewee if that interviewee is not able to do so.

Who can be a support person?
An adult not involved in the interview or investigation.

Can you refuse the interviewee a support person?
The FWA talks about unreasonable refusal at s387 ss(d) and the case of Trembath v RACV Cape Schanck Resort provides some guidance around this issue (with thanks to Adele Garnett Associate at HopgoodGanim Lawyers for this reference)

Personally I recommend that you always offer a support person.  I offer a support person in writing to all interviewees; complainants, witnesses and respondents. If they don’t bring one to interview I always remind them they that are able to do so and when we go live on to the audio recording (I always audio record interviews) one of my preamble questions is “I note that you do not have a support person present, are you happy to continue without a support person” 

Can you decide who the support person is?
No.

Generally, who are support people?

I have found that support people generally fit into 4 categories

1. Professionals, lawyers, union reps etc, these are usually good value, they know the rules, most are reasonable if they feel that the investigation will be conducted fairly and the investigator is a professional. Senior lawyers generally know the process and the rules, junior lawyers can be problematic if they get a bit enthusiastic, some quiet explanation usually helps.

It is important when dealing with professionals to show that you are equally as professional and that you are investigating the matter in an unbiased manner and not to be intimidated.  Some union reps will try be overbearing, they just need to be advised to act in teh best interest of their member.

2. Co-workers, also not usually a problem however well ahead of time and in writing I always advise that the support person should not have any involvement in the matter.

3. Managers, can be problematic, I always ensure that if a manager is present he or she will have no part at all in the final decision making process, in my experience interviewees rarely go for that option. Managers who have any influence or involvement in the final decision making process, this includes having meetings or discussions or being asked for input about the matter with the final decision maker should not be a support person.

4. Family members, here is where problems can and do occur, firstly they don’t understand the role of the support person, they are more likely to overstep especially when support a respondent. I always ask a support person if they understand their role during introductions and live on the record.

Can you decide who the support is not?
Yes, a support person should not have any involvement in the matter under investigation, they should not be a co-complainant, a witness in the matter, definitely not a co-respondent. A child cannot be a support person nor should a person is apparently unsuitable due to any concerns around capacity.

Managers who have any influence or involvement in the final decision making process, this includes having meetings or discussions or being asked for input about the matter with the final decision maker.

In the case of union or other officials, if the proposed support person has been the support person for the other parties in an investigation they may not be suitable, however this may be cause difficulties if you are interviewing a number of people onsite there is only one union person available.

I don’t recommend having the same support person for the complainant/s and the respondents/s

What do I help the support person to ensure the interview proceeds without issues?

1. Clearly explain the process
2. Clearly explain their role.
3. Confirm with the support person that they understand their role and that they understand the boundaries.
4. Provide the support person with the opportunity to ask any questions they may have before the interview starts.
5. Remain patient and professional

What happens if the support person is prompting the interviewee?
 

This can actually be helpful at times as it is likely that they discussed the beforehand with the interviewee and the support person may be helping the interviewee to recall events. On many occasions I have heard a support person say “Don’t forget to tell him about……” after which I will want to hear it in the interviewees own words.

The interviewee may be nervous and could tend to forget certain details during the interview. Listen carefully, if it is getting out of hand stop the interview and ensure the support person is aware of their role and boundaries.

What happens if the support person is disruptive?
It is always wise to ensure that the support person is aware of their role and boundaries before commencing the interview. If the support person is disruptive during the interview I recommend the following:

  1. Stop the interview and remind the support person of their role and boundaries. You may have to do this more than once.
  2. If the interview is becoming unworkable, stop the interview and re-schedule it. It might be wise at this time to discuss the choice of support person with the interviewee.
  3. Ejection of the support person should be only considered as a last resort, it is very likely that the interview will not get very far after that and the interviewee may be come uncooperative if this occurs.

Can I eject a support person from the interview if they are becoming too disruptive?
Yes (see above) but I don’t recommend it. It could be considered as falling under s387 FWA ss (d). Stop the interview and re-schedule it, discuss the choice of support person with the interviewee.

Can the interviewer have a support person?
Yes and I recommend it if you have a feeling that the interviewee may be difficult.

What can my support person do?
That depends, if they are a co-interviewer they should be taking notes and then ask questions that you may have not or questions that help to clarify matters.

If they are simply there to support you I recommend that your support person should also be taking notes.

Having a support person can help to ensure that complaints are not made against you in regard to the manner in which the interview was conducted.

Why do I need to know about how to deal with a support person?

Workplace investigative interviewing is a skill. A successful interview will enable you to gather evidence that may be vital to the investigation.

Dealing with a support person in a professional manner is part of the job of a professional and skilled investigator.

What do I do if I am not confident?

Get some training, at AWPTI we offer a comprehensive Investigating Workplace Misconduct 2 day course (link to course) that includes a section on dealing with support persons, contact us if you would like more details via email at enquiries@awpti.com.au or on 02 9674 4279

If you want to ‘Do it yourself” we also have range of HR Products that will guide you through the process – http://awpti.com.au/hr-products/

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.

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/

Workplace Investigation Procedural Fairness fail.

Workplace Investigation Procedural Fairness fail – employee awarded $40,977.30 in compensation

Employee Dismissal Unfair Because employee was not afforded Procedural Fairness – Michael Ramsey applied for an unfair dismissal remedy (Link to case Ramsey v Trustee for the Roman Catholic Church for the Diocese of Parramatta [2017] FWC 223) following his summary dismissal as an IT Project Manager in CatholicCare Social Services. Mr Ramsey was terminated following an incident where it was alleged that he physically shoved Ms Rashada, the Manager of People & Culture.

Before this incident, other issues had arisen which involved Mr Ramsey, including the disconnection of the NBN service (as a result of administrative errors on documents overseen by Mr Ramsey) and a significant virus attack upon the CatholicCare networks. In addition Mr Ramsey had also taken a period off work after aggravating a neck/back injury that he had sustained during the course of employment in 2013.

At 1pm on 27 April 2016, Mr Ramsey attended the Chancery Office for his scheduled performance review meeting. Ms Rashada, the Manager of People & Culture directed Mr Ramsey to sit down and told him that she would return later. At 4:45pm Mr Ramsey was informed that Ms Rashada was unable to attend the meeting and the meeting was rescheduled. On 29 April 2016, Mr Ramsey attended the Chancery Office for the rescheduled meeting but was told 4 hours later that it was too late for the meeting to be held and it would have to be rescheduled again.

On 2 May 2016, the performance review meeting finally proceeded with Mr Ramsey, Mr Netana (IT Manager), Ms Rashada and Mr Makdessi (HR Manager) present. At this meeting three issues were raised –
1. Mr Ramsey’s neck injury,
2. the administrative error that resulted in the disconnection of the NBN Service
3. the virus attack on the CatholicCare networks.

The outcome of the meeting was that Mr Ramsey was to receive his first warning letter and was required to attend for work at the Chancery Office at Parramatta in the future.

On 6 May 2016, Mr Ramsey received two warning letters. The first warning letter referred to the 2 May meeting. The letter stated that his performance as the CCSS IT Manager had been unsatisfactory, and that immediate improvement was required. The letter stated that Mr Ramsey’s performance would be supported through a formal performance management process.

The second letter referred to Mr Ramsey’s delay in attending the Chancery Office on 4 May 2016. Mr Ramsey had been delayed on this day as he had been requested to assist with a matter in another office. The second letter stated, “failure to improve your attendance to the required standard may result in further disciplinary action or termination of your employment.”

On 6 May 2016, Mr Ramsey was also asked by Mr Netana to sign a performance improvement plan. When Mr Ramsey declined to sign it, Mr Netana told him to take it home and think about it over the weekend.

On 9 May 2016, Mr Ramsey attended for work at the Chancery Office at Parramatta. At about 10.30am a conversation occurred between Mr Netana, Ms Rashada and Mr Ramsey concerning the performance improvement plan. Mr Ramsey persisted in his refusal to sign or engage with the contents of the performance improvement plan. Mr Netana left the room to attend to another matter. Ms Rashada claimed that during the time Mr Netana was absent, the discussion between Mr Ramsey and herself became heated, resulting in Mr Ramsey physically shoving her.

In considering whether Mr Ramsey physically shoved Ms Rashada, Vice President Hatcher noted that he could not be satisfied with the evidence of Ms Rashada, as he did not consider her to be a credible witness. Accordingly, VP Hatcher held that he could not make a positive finding that Mr Ramsey pushed Ms Rashada as a number of possibilities were open in the circumstances.

As VP Hatcher was not satisfied that Mr Ramsey pushed Ms Rashada, he concluded that there was no valid reason for dismissing Mr Ramsey. Further, VP Hatcher noted that Mr Ramsey was denied procedural fairness and was dismissed by a person lacking both impartiality and authority.

The FWC determined that the dismissal of Mr Ramsey was harsh, unjust and unreasonable. The FWC ordered the Trustee for the Roman Catholic Church for the Diocese of Parramatta to pay Mr Ramsey $40,977.30 in compensation.

Lesson for employers

Decisions in regard disciplinary actions taken as a result of misconduct, poor performance or the outcome of an investigation should be made by an impartial and unbiased party.

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/