Workplace Investigation Employers duty of care.

Workplace Investigation Employers duty of care – Do employers owe a duty of care to employees during a workplace investigation? This question will be examined this year in an appeal to the High Court. The decision could have significant and widespread implications for employers, employees and HR professionals when conducting a workplace investigation.

The High Court granted an employee special leave to appeal the decision in the case of Govier v The Uniting Church in Australia Property Trust. This decision concerned the liability of a disability services provider when one of its employees Ms Govier who was attacked by a colleague. Ms Govier required hospitalisation and claimed that she feared that she would die during the attack, she subsequently developed chronic post-traumatic stress disorder and depressive disorder.

Immediately after the Incident, Ms Govier telephoned her supervisor and advised him that she had been attacked by a colleague, that she had telephoned the police, and that she was going to hospital.

The employer immediately commenced an investigation on the same day preparing and delivering a letter to the Ms Govier’s home that required her to attend an investigative interview on the following day and directed her not to discuss the incident with any other person. The letter also outlined that Ms Govier was stood down on full pay pending the determination of the investigation. Ms Govier received the letter while she was still in hospital as a result of the Incident.

Ms Govier did not attend the interview, she provided her employer with a medical certificate that advised that she was unfit for work. Two weeks later, the employer wrote another letter to Ms Govier claiming that she had refused to attend the interview and that its preliminary finding was that she had engaged in violent and inappropriate behaviour against her colleague. Ms Govier was given five days to show cause as to why termination of her employment was not warranted. Ms Govier did not return to work and her employment was ultimately terminated.

Ms Govier claimed damages for the aggravation of her psychiatric injury, arguing that the content of the two letters aggravated her chronic, post traumatic and major depressive disorders, and, had she not received the letters, her injuries would not have been so severe.

At first instance in the District Court of Queensland, Ms Govier argued that the decision by her employer to issue the letters in connection with the workplace constituted a breach of a duty of care owed by the employer. Ms Govier was unsuccessful and appealed to the Queensland Court of Appeal . The QCA ultimately agreed with the District Court, finding that no damages were payable because the employer did not have a duty to avoid such harm in the course of investigating the incident. The QCA followed the authority of State of New South Wales v Paige. In that case, the NSW Court of Appeal found that the appellant did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to the respondent.

In the High Court, it will be alleged that the employer knew or ought to have known that sending the first letter immediately after the incident would aggravate Ms Govier’s psychiatric injuries. It will also be argued that Ms Govier’s injuries were reasonably foreseeable in the circumstances. The appeal seeks to clarify the application of the rule in Paige to workplace investigations in which the employer has control over the investigative process, as distinct from the facts in Paige where the issue turned on a disciplinary regime governed by statute.

The High Court is expected to hear the appeal early this year.

Workplace Investigation Employers duty of care – Lessons for employers

  • When conducting a workplace investigation it is important that employers and HR professionals act in professional and time appropriate manner.
  • Whether the High Court finds that employers owe a duty of care to employees during a workplace investigation or not it is wise for employers and HR professionals to take am approach that minimises the dangers of harm.

Workplace Investigation Employers duty of care – How can we help

AWPTI can provide workplace investigation training programs to help HR professionals to master the skills associated with the conduct of a workplace investigation – more details

Should you wish to conduct the investigation internally we provide and investigation review service or Investigation Peer Mentoring – More details

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/

Some details of this article was originally published at Mondaq.com

Warnings, termination, unfair dismissal – It is important if as an employer you are going to rely on past warnings when terminating a employee, that the warning/s are relevant to the reasons for termination, failure to do so could see the Fair Work Commission hold the the termination was unfair as it did in the case of Taylor v Qube Ports P/L t/a Qube Ports (See below)

“The issue of tolerance of poor behaviour or performance is among the most delicate issues that managers and HR managers will face with employers weighing up questions of fairness, due diligence, productivity and workplace harmony – as well as legal aspects.

One potentially awkward scenario is when an employee has received official warnings that are dated or have expiry dates, that the employee duly sees out, only for the sub-par behaviour or performance to return soon after these dates.

The question is, how viable is it for an employer to refer back to expired warnings or a letter dated older than six month as grounds for further action or even dismissal?

It is important to remember if terminating or disciplining an employee not to confuse the purpose of warning letters, for example;

  • Previous warning letters that relate to behavioural issues or misconduct cannot relied on in cases of poor performance and vice versa.
  • If an employee breaches a safety guideline, process or procedure you cannot rely on a previous warning letters for unrelated behavioural or poor performance issues.”

Excerpt from the AWPTI Reasonable Management Action manual – http://awpti.com.au/reasonable-management-action-manual/

Warnings, termination, unfair dismissal – Taylor v Qube Ports P/L t/a Qube Ports

TERMINATION OF EMPLOYMENT – misconducts.394 Fair Work Act 2009 – application for relief from unfair dismissal

The applicant Mr Taylor was terminated for breach of a lawful and reasonable direction given by employer regarding loading of ship on 1 July 2016.

Evidence was provided that the applicant had received three prior warnings for threatening behaviour and failing to follow company procedure.

Mr Taylor submitted that on 1 July 2016 the breach was not deliberate and that he was under a lot of pressure that day. In response Qube argued that applicant’s submissions in relation to nature or quality of breach was irrelevant to question of valid reason and stated that that applicant knew about procedure and decided consciously and wilfully not to follow it.

The Commission found applicant breached company procedure and that he was familiar with it but as it was an isolated event and that it did not constitute a valid reason for dismissal and that the prior warnings were not relevant as they were dubious factually with dubious processes.

The Commission found in favour of the respondent that applicant’s previous warnings should be taken into account but only to the extent of whether or not the incidents (relating to the warning) had occurred but not relevance to the dismissal.  The Commission found dismissal was harsh, unjust or unreasonable, that reinstatement inappropriate. Compensation of $18,225.80 less taxation was ordered.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc2238.htm

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

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

Workplace Investigation Warning Letters

Workplace Investigation Warning Letters & terminations – The issue of tolerance of poor behaviour or performance is among the most delicate HR managers will face, with employers weighing up questions of fairness, due diligence, productivity and workplace harmony – as well as legal aspects.

One potentially awkward scenario is when an employee has received official warnings with expiry dates, which they duly see out, only for the sub-par behaviour or performance to return soon after these dates. The question is, how viable is it for an employer to refer back to expired warnings as grounds for further action or even dismissal?

“It is risky to rely on an expired warning as the grounds for terminating someone’s employment.”

Re-occurrence of the same or related issues should be addressed by issuing an additional warning.
 
Where you recommence the performance counselling process will depend on the severity of the issues and the length of time that has passed since the last occurrence, or warning was issued. Failure to issue an additional warning is unlikely to satisfy procedure fairness requirements, which makes an unfair dismissal claim difficult to defend.

The key question is defining up front what sustained improvement in performance or behaviour is expected, so there are no surprises for anyone about what the expectations are and the ramifications if those expectations aren’t met.
 
The other key variable when considering the warnings-to-termination minefield must be how long a warning with an expiry date should last for.  This will depend on the severity of the issue or offence, but generally warnings will remain in place for between one and six months. I would argue that a warning for violence in the workplace would remain in effect for longer. Anything greater than six months – without re-occurrence – may be considered unreasonable.

A number of key considerations for managers and HR professionals to keep in mind to ensure procedural fairness when issuing warnings and referring to previous warnings. They include:

  • Have an open mind and work with a sincere desire to help the employee improve and ultimately succeed, right up until the point you reach the decision that they can’t or won’t
  • Always show respect and compassion to the employee and align any decisions you make with your company values
  • Provide clarity regarding the issue or concern and allow the employee to respond to the concerns
  • Provide coaching, support and a reasonable time to improve
  • Prior to termination, provide clear notification to the employee that their employment may be at risk

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.

Workplace Investigation Warning Letters & terminations – Our Management Essentials training program provides in depth training and guidance in regard to the issuing of warning letters.
http://awpti.com.au/management-training/

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/