Summary dismissal, Serious Misconduct, Workplace Investigations Summary dismissal, Serious Misconduct, Workplace Investigations – A recent case at the Fair Work Commission (Trialonas v Steric Solutions Pty Ltd) highlighted the need for employers to understand what Summary Dismissal is, how it applies to Serious Misconduct and the importance of thorough professional workplace investigations. In this case a worker was […]

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/

 

Workplace Bullying is an issue that is still facing an increasing number of employers and adversely affecting many employees.

To address these issues we recommend the following;
1. Training on what workplace bullying is and what it is not and what the behavioural expectations of the organisation are. AWPTI can assist with a number of programs for mangers, staff and HR professionals – http://awpti.com.au/training/

2. Investigate complaints in a timely and professional manner – Not sure what to do or how to do it, Read more,
AWPTI can assist – http://awpti.com.au/investigations/

What is workplace bullying?

Workplace bullying is any behaviour that is repeated, systematic and directed towards an employee or group of employees that a reasonable person, having regard to the circumstances, would expect to victimise, humiliate, undermine or threaten and which creates a risk to health and safety.

The principles contained in the anti-bullying provisions of the Fair Work Act also provide assistance in determining whether bullying has occurred. The Fair Work Commission’s Anti-bullying Benchbook provides download here: FWC Anti Bullying Benchbook

Bullying – When is a worker bullied at work?

See Fair Work Act s.789FD – Read more

A worker is bullied at work if, while the worker is at work in a constitutionally-covered business, another individual, or group of individuals, repeatedly behaves unreasonably towards the worker, and that behaviour creates a risk to health and safety.

Bullying can cover behaviours carried out by one or more people.

The definition gives effect to the Government’s response to the House of Representatives Standing Committee on Education and Employment’s report Workplace bullying We just want it to stop”.

Repeated unreasonable behaviour

The Committee noted that ‘repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range of behaviours over time and that ‘unreasonable behaviour’ is behaviour that a reasonable person, having regard to the circumstances, may see as unreasonable (in other words it is an objective test). This would include (but is not limited to) behaviour that is victimising, humiliating, intimidating or threatening.

There is no specific number of incidents required for the behaviour to be considered ‘repeated’, nor does the same specific kind of behaviour have to be repeated.

Risk to health and safety

A risk to health and safety means the possibility of danger to health and safety, and is not confined to actual danger to health and safety.

The ordinary meaning of ‘risk’ is exposure to the chance of injury or loss.

The bullying behaviour must create the risk to health and safety. Therefore there must be a causal link between the behaviour and the risk. Cases on causation in other contexts suggest that the behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way.

Behaviour will not be considered bullying if it is reasonable management action carried out in a reasonable manner.

Safe Work Australia – Guide for Preventing & Responding to Workplace Bullying

Safe Work Australia has provided guidelines for the prevention of and response to workplace bullying – download here – Safework Australia Guide to preventing & responding to workplace bullying

Workplace bullying can adversely affect the psychological and physical health of a person. Workplace bullying is a psychological hazard that has the potential to harm a person, and it also creates a psychological risk as there is a possibility that a person may be harmed if exposed to it. If effective control measures are put in place to address and resolve workplace issues early, a workplace can minimise the risk of workplace bullying and prevent it from becoming acceptable behaviour in the workplace.

Workplace bullying is repeated and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.

Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time.

Unreasonable behaviour means behaviour that a reasonable person, having considered the circumstances, would see as unreasonable, including behaviour that is victimising, humiliating, intimidating or threatening.

Examples of behaviour, whether intentional or unintentional, that may be workplace bullying if they are repeated, unreasonable and create a risk to health and safety include but are not limited to:

  • abusive, insulting or offensive language or comments
  • aggressive and intimidating conduct
  • belittling or humiliating comments
  • victimisation
  • practical jokes or initiation
  • unjustified criticism or complaints
  • deliberately excluding someone from work-related activities
  • withholding information that is vital for effective work performance
  • setting unreasonable timelines or constantly changing deadlines
  • setting tasks that are unreasonably below or beyond a person’s skill level
  • denying access to information, supervision, consultation or resources to the detriment of the worker
  • spreading misinformation or malicious rumours, and
  • changing work arrangements such as rosters and leave to deliberately inconvenience a particular worker or workers.

If the behaviour involves violence, for example physical assault or the threat of physical assault, it should be reported to the police.

Workplace bullying can also be subtle & could include behaviour such as:

  • Deliberately excluding, isolating or marginalising a person from normal workplace activities
  • Intruding on a person’s space by pestering, spying or tampering with their personal effects or work equipment
  • Intimidating a person through inappropriate personal comments, belittling opinions or unjustified criticism

Covert behaviour that undermines, treats less favourably or dis-empowers others is also bullying; for example:

  • Overloading a person with work
  • Setting timelines that are very difficult to achieve or constantly changing deadlines
  • Setting tasks that are unreasonably beyond a person’s ability
  • Ignoring or isolating a person
  • Deliberately denying access to information, consultation or resources
  • Unfair treatment in relation to accessing workplace entitlements, such as leave or training or failure to provide adequate training

Workplace bullying can take place in person, through a secondary person or other persons or via remote communications such as telephone, email or the internet.

The use of social media such as Facebook, Twitter, Instagram or online chat forums for bullying purposes in or outside the workplace can constitute workplace bullying if it forms part of a pattern, or is an extension of bullying that has or is occurring in the workplace or is directed at a fellow employee.

Workplace bullying behaviour does not include:

  • Reasonable action taken, in a reasonable manner by an employer to counsel, transfer, demote, discipline, retrench or dismiss an employee
  • Legitimate and appropriate management including the management of performance
  • Legitimate and appropriate performance review
  • A decision by an employer, based on reasonable grounds, not to award or provide a promotion, transfer, or benefit about an employee’s employment
  • Reasonable administrative action taken in a reasonable manner by an employer about an employee’s employment; or
  • Reasonable action taken in a reasonable manner under an Act affecting an employee
  • Management of work-related interpersonal conflicts and occasional differences of opinion which may be more appropriately addressed under the companies Grievance Resolution policy
  • Investigations into bona fide complaints
  • Participation in dispute resolution processes

For assistance with training (we have specialised packages for managers, staff and HR professionals) or investigation please contact us – enquiries@awpti.com.au or 02 9674 4279

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

 

Unfair dismissal serious misconduct workplace investigation – When considering dismissing an employee for serious misconduct, employers must bare in mind the following;

  1. Does the alleged behaviour that resulted dismissal reach the threshold of serious misconduct
  2. Have you conducted an investigation – do yo have the evidence to support the decision to terminate?
  3. Does the punishment fit the crime?

More details of another case there the issue of the punishment fitting the crime was considered by the FWC – http://awpti.com.au/punishment-must-fit-crime/

More details about summary dismissal can be found here – http://awpti.com.au/summary-dismissal-2/

Recently at the fair Work Commission, the depot manager at an Australian courier company was unfairly sacked after he was accused of being responsible for the breach of a worldwide embargo on the J.K. Rowling book Fantastic Beasts and Where to Find Them, the Fair Work Commission has found.

The FWC heard that XL Express Pty Ltd sacked the depot manager for serious misconduct last November when he was told that the delivery of embargoed J.K. Rowling books a day early had damaged the company’s reputation. XL Express blamed the Brisbane depot manager for the embargo breach, a claim he denied.

Describing the delivery of embargoed freight as “the pinnacle of its operations”, the company said a November 17, 2016 embargo on the J.K. Rowling novel was breached on November 16.

Under cross-examination, the company agreed it had not lost its contract with the book distributor and had not been financially penalised for the embargo breach. It claimed a forklift driver removed the embargo consignment from the embargo area and that another staff member removed the consignment note from an embargo file. The depot manager was accused of failing to ensure staff followed set procedures for embargo releases.

The depot manager told the FWC that the error with the sorting and handling of the consignment note happened on November 15 when he was on leave.  He said he was unaware that someone had “accessed his office, gained access to the box where the embargo labels were kept and also retrieved the con-note from the embargo con-notes and had labelled the freight”.

He said no fewer than six people had taken these actions on the day he was absent from the depot.

The commission heard that the depot manager claimed the error that resulted in the embargo breach on November 16 “was not through any fault on his part”.

The depot manager, who had been employed from May 2008 until late November last year, was dismissed on the grounds of serious misconduct after a meeting in which he was also accused of workplace bullying. He said it was the first time the allegations had been put to him. He was also accused of wrongly claiming he had received training in the company’s anti-bullying procedures.

Fair Work Commission deputy president Ingrid Asbury’s judgment said XL Express had no documents and called no evidence to support the bullying allegations.

The depot manager told the commission he was not paid his long service leave entitlements because his job was terminated for misconduct.

In finding the dismissal was unfair, Deputy President Asbury ordered XL Express to pay the sacked employee $48,432 in wages, less tax and $6555 in superannuation contributions.

The commission found that although it was not a valid reason for his dismissal, the depot manager’s responsibility for depot operations “meant that he had a role in the series of events that led to the embargo breach”.

It said the dismissal was harsh because it was disproportionate to the misconduct in relation to the embargo breach.

It is important to consider the decision in Rode v Burwood Mitsubishi where is was held a valid reason must be “defensible or justifiable on objective analysis of relevant facts”.

 

Choosing a Workplace investigator – You don’t have to be Sherlock Holmes with a trusted Doctor Watson at your side to conduct a workplace investigation, however to conduct professional, fair, timely and legally compliant investigations you need the right background, skill, experience and a high degree of patience.

As a manager or HR professional if you receive a complaint of bullying, harassment, sexual harassment or any other form of misconduct including misuse of IT/internet/email or other resources, breaches of policy or Code of Conduct, fraud just to name a few your first decision is do it yourself or outsource.

Here is What the Fair Work Commission said about outsourcing investigations

If you decide to outsource, what are you options. Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an daily basis, so in most cases when they engage an external investigator they really don’t know what they are getting. Here are some suggestions;

A smaller investigation firm.
Advantages: Often a small group of hand picked investigators with high skill and experience levels.
Disadvantages: Less investigators means less availability, I recommend developing a relationship with a trusted firm to get priority service.

Large investigation firm
Advantages: Availability as a result of more investigators
Disadvantages: Quality could be an issue, do you know who you are getting?

Law firms
Advantages: Knowledge of the law
Disadvantages: A possible lack of experience conducting investigations after all it’s not their core business.
Many law firms have relationships with consultant investigators to overcome a lack of internal skill and experience.

Other Professionals (HR consultants, mediators, counsellors, therapists, psychotherapists)
Advantages: None that I can see, as an investigator I wouldn’t advise on recruitment or family therapy the same should apply (in my opinion)
Disadvantages: Lack of skill and experience conducting investigations. They will likely be unlicensed with no actual investigative qualifications.

Qualifications and licences required

If you are going to outsource you should be aware that in most Australian states investigators are required to be qualified and licenced. In NSW investigators must hold a Certificate III in Investigation Services and a an applicable licence. In NSW Failure to do so could render the investigator in breach of the  Fair Trading Amendment (Commercial Agents) Act 2016, other states have similar provisions.

Certain persons including Police and legal practitioners holding a current legal practising certificate are exempt under the Act.

You can check is an investigator is licenced here

To investigate matters involving Commonwealth Government departments investigators must hold Certificate IV in Government investigations as per the Australian Government Investigation Standards.

Insurance

It is wise to ensure that the investigator has public liability and professional indemnity insurance.

Background

The backgrounds of workplace investigators are varied, however we recommend that you consider investigators who have a background that involves investigation, interviewing, gathering analysis of evidence, report writing, presenting evidence at court/tribunals and a strong knowledge of the law. Many very good investigators have a policing background.

How do you find an investigator?

When issues arise organisations usually have two choices when they decide to outsource;
(1) Go to Google – If you choose a workplace investigator or investigation company from the front page of Google, does that mean you are picking a good investigator or just one that has spent money on SEO or Ad Words?

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed. This article may be of assistance – http://awpti.com.au/workplace-investigator/

In relation to Google, Australian Workplace Training & Investigation (AWPTI) ranks highly on Google in a number of investigation and training categories, I haven’t spend a cent of SEO, however I do publish a lot of interesting and I think helpful material via my website blog page http://awpti.com.au/blog/ and via LinkedIn https://www.linkedin.com/in/philobrien1/ (if we are not connected, please feel free to send me a request).

I am always open to meeting with organisations to discuss how I can assist them with a view to developing an on-going relationships.

Choosing the right investigator can save you time, money and worry. getting it right the first time every time is essential.

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 Allegations and Procedural Fairness- The importance of ensuring correct procedure when it comes to advising a person subject of a complaint what the actual allegations against them are.

During the course of an investigation there comes a point where you must ensure that the person subject of a complaint is afforded procedural fairness.

Failure to afford an employee Procedural Fairness can result in;

  • Successful unfair dismissal action by terminated employees at the Fair Work Commission
  • Orders for compensation against the employer
  • Orders for reinstatement of the terminated employee
  • Negative publicity and damage to brand image
  • Negative impact on the business in general

General rules of Procedural Fairness – the rights of the employee   

The right to know the nature of the allegation/complaint against them in cases of behaviour issues

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;
(b) whether the person was notified of that reason

The right to respond to the allegation/complaint or performance issue

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:
(c) Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person

The excerpt above is from the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/

Important questions are:

Q1. How do you advise the person subject of a complaint what the allegations are?
Q2. What information do you need to provide?

A1. You can advise the person verbally or in writing, (includes via email)

I always recommend providing the allegations in writing, why?

  1. You are able to clearly outline the allegations, verbal allegations can be poorly expressed and/or misunderstood and may be subject to argument at a later date
  2. The person subject of the complaint has the letter or email to refer to when formulating their response.  Full details of a verbal allegation can be forgotten, was the person fully listening at the time, how would you be able to tell?
  3. There can be no argument as to the nature of the allegation. A respondent can dispute the content of a verbal allegation, how can you prove it?
  4. providing verbal allegation only could be considered by the Fair Work Commission as poor process
  5. Using verbal allegations can lead to complaints of a lack of procedural fairness

In the case of Mr Michael Fitzpatrick Bunnings Group Ltd T/A Bunnings

The commissioner found (at 85)
In addition to not providing Mr Fitzpatrick with the basis of the allegation, in a written form, the Commission was not provided with a written record of the disciplinary investigation. The Commission was not provided with a written record of what actions were taken against Mr Fitzpatrick or provided with an adequate written record of the reasons why he was dismissed for serious misconduct. The only evidence provided to the Commission was a very abridged record of a disciplinary discussion/meeting on 2 October 2013 at the time of Mr Fitzpatrick’s dismissal

and at (91)
the Employer should have reduced to writing the allegations regarding Mr Fitzpatrick’s conduct which could lead to his dismissal. This would have enabled Mr Fitzpatrick to respond to the specific allegations and supporting evidence, rather than Mr Vitler and Mr Cherry making a choice regarding the “facts” based on the initial statement

The commission found in favour of Mr Fitzpatrick
Link to case here – Fitzpatrick v Bunnings Group Ltd T/A Bunnings

A2. What information do you need to provide?

If you are going to take the sensible (in my opinion) course it is important that your letter of allegation is complete and contains carefully worded allegations.  For full details of the content of a letter and the construction of allegations please see the AWPTI Procedural fairness manual – http://awpti.com.au/procedural-fairness-manual/

Your allegations must contain enough information to allow the person subject of the complaint to respond, ideally including the time, date and place where the behaviour or misconduct took place.  The actual behaviour subject of the allegation, The person/s subject of the behaviour (victim) and what policy the behaviour breached.

AWPTI can assist to take the headache of workplace investigations from you.  When we undertake an investigation we draft and provide to you all the letters to parties including comprehensive and legally compliant letters of allegation.

Should you wish to do it yourself we have a comprehensive Investigation Document Toolbox available at – http://awpti.com.au/investigation-toolbox/ and other products to assist HR professional and managers at – http://awpti.com.au/hr-products/

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/

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/