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Social media – unfair dismissal

Singh V Aerocare Flight Support Pty Ltd [2016] FWC 6186

Social media unfair dismissal. A decision by the Fair Work Commission has outlined the issues relating to employees making public comments on Facebook outside of work hours however it has also highlighted the necessity for employer to ensure that matters such as this are properly investigating before jumping to a conclusion.

Mr Nirmal Singh was a casual baggage handler employed by Aerocare Flight Support, an aviation ground handling and services company. It is important to note that Mr Singh possessed an Airport Security Identification Card and was authorised to work within the restricted security-sensitive areas of Perth Airport.

Mr Singh was dismissed by Aerocare after it was discovered by co-workers that he had made posts on Facebook that appeared may have expressed radical views. In one post, Mr Singh linked to an article posted by an Australian Islamic group and included his own commentary, being the words “We all support ISIS.”

Prior to his employment being terminated, Mr Singh attended a meeting with Aerocare management who alleged that his Facebook posts were contrary to the Aerocare social media policy and, given the nature of his job, represented a security risk. Mr Singh claimed that the posts had been sarcastic, that he was opposed to ISIS and extremism, and he was sorry that his posts had been misinterpreted.

That meeting was adjourned to allow Aerocare to review their notes and consider Mr Singh’s explanation. Approximately 10 minutes later, the meeting recommenced and Mr Singh was informed that he would not be offered any further shifts and his employment was effectively terminated.

Mr Singh subsequently made an application to the FWC for unfair dismissal.

In the decision, Commissioner Hunt confirmed that Mr Singh’s post was in breach of Aerocare’s social media policy. It stated that “[it is not] acceptable for employees in the relevant airport environment to post what appears to be support for a terrorist organisation and explain it away as sarcasm, comedy or satire. Mr Singh did a very stupid thing.” The FWC also stated that if Mr Singh had in fact confirmed that he was a supporter of ISIS, it would have no hesitation in finding that the Facebook post was a valid reason for dismissal.

Commissioner Hunt commented that:

  • It was unsatisfactory that Aerocare had failed to properly investigate the complete news feed of Mr Singh’s Facebook account. If time and attention had been taken to review the news feed, Aerocare would have discovered that Mr Singh was not, in fact, a supporter of ISIS.
  • Mr Singh could have been invited to explain his recent Facebook posts to Aerocare, which would have taken no more than 1-2 hours. Such an explanation would have satisfied Aerocare that Mr Singh was not an ISIS supporter. He was not invited to do so.
  • The 10 minute break during the disciplinary meeting was not satisfactory, as it was impossible during that time for Aerocare to have adequately considered all of the issues discussed in the meeting.
  • It would have been appropriate for Aerocare to have continued Mr Singh’s suspension, which would have allowed management to fully consider the issues and to make further inquiries with respect to Mr Singh’s Facebook account.
  • Prior to the meeting, Aerocare decision makers had closed their minds to any explanation from Mr Singh, and they had not considered any sanction other than terminating his employment.

Commissioner Hunt found that there was no valid reason for Mr Singh’s termination and his claim for unfair dismissal was upheld. Mr Singh was awarded compensation the equivalent of 8 weeks’ pay, however that amount was reduced by 40% because of Mr Singh’s misconduct in breaching Aerocare’s social media policy.

This case highlights the importance of conducting through and timely investigations into conduct that appear to be improper or in breach of company policies especially those relating to comments made by employees online and in social media. Sarcasm and satire can be difficult to detect in text-based communication, it is crucial to investigate the context in which those comments are made.

When considering whether an employee’s conduct warrants dismissal, employers must ensure that the employee is afforded procedural fairness in that any explanation provided by the employee it taken into account before the final decision is made and if there any alternative sanctions, other than dismissal, that might be appropriate. Failure to do so may unnecessarily expose the employer to a claim for unfair dismissal.

AWPTI can assist you with full investigation services – http://awpti.com.au/investigations/

AWPTI – workplace investigations in 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/

If your organisation is encountering these types of issues and you are not sure what to do, I recommend that you contact an expert for assistance with training and potential 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

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 investigation

social media unfair dismissal

Complaint handling

Complaint handling can be a difficult part of HR, what to do, what approach to take, how do you decide?

Getting it wrong when it comes to handling complaints such as workplace bullying, harassment or sexual harassment can be a very costly exercise and can end up in court.

It is important to decide the following;

  1. What is the complaint about
  2. What should I do
  3. How will I do it.
  4. Is it a disciplinary matter?

AWPTI can assist you and take the stress out of complaint handling in three ways

  1. We provide free of charge a Complaint Analysis Chart that will help you to work out what course of action is the most appropriate. If you would like a copy of the chart go to our home page, scroll down and fill in the request box. http://awpti.com.au/
  2. We can provide you with training in relation to complaint handling and investigations. http://awpti.com.au/investigation-training/
  3. We can provide you with full investigation services to take the stress out of dealing with complaints.http://awpti.com.au/investigations/

Contact us to find out how we can help you and your business

AWPTI – workplace investigations in 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/

Complaint handling

Responding to sexual harassment complaints – Part 1

Responding to sexual harassment complaints can be a daunting task for managers and HR managers, if you get it wrong there can be very costly consequences.

In the case of Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC illustrates a breach of duty of care in a sexual harassment matter in which the Supreme Court of Victoria has awarded an employee over $1.3 million in damages after finding that her employer was negligent in failing to provide a safe working environment and allowing her to be subjected to extensive abuse, sexual harassment and bullying by her colleagues.

In part 1 I will discuss outsourcing complaint investigations, in part 2 I will discuss conducting investigations internally (more details)

When you are faced with a complaint of sexual harassment the first decision you should make is should this be investigated, bit of a no brainer here, YES of course it should.

The second decision is, do we handle the matter internally or bring in an external expert.

Here is what the Fair Work Commission said about outsourcing workplace investigations, http://awpti.com.au/outsourcing-investigations/

When making the decision I recommend that you ask the following questions,

  1. Who will conduct the investigation?
  2. Do we have someone, or do I have the necessary expertise and/or experience to conduct the investigation.
  3. Is the nominated person or am I comfortable conducting the investigation.
  4. Does the nominated person, or do I have the time to conduct the investigation. This question is often overlooked, however investigations take time, time away from all your other work.

If the answer is NO to any of the questions it is recommended that you considering outsourcing the investigation.

A catch phrase that comes to mind is used by a Sydney conveyancer in radio ads,

“When all you do is conveyancing,
you get very good at it”

That statement very much applies to workplace investigations.

So you have decided to outsource the investigation, what now?

Unless you have a previous relationship with a workplace investigator it is likely that you will turn to Google where you will find a number of listings, so who to choose and why?

A Lawyer might be a good choice, after all they understand the law as it relates to workplace issues, but do they have the experience in conducting investigations, conducting investigative interviews and drafting investigation reports.

In face many law firms actually outsource investigations to professional investigators, I have worked for a number of law firms, this allows the lawyers to be able to provide advice based on the investigation report without bias or any suggestion of a conflict of interest. See http://awpti.com.au/law-firms/

A workplace investigation firm is also a good choice, however you must ensure that whoever is nominated to conduct the investigation has relevant expertise in the particular type of complaint you are dealing with.

Many  workplace investigation firms employ investigators with a policing background who have experience in interviewing, evidence gathering and brief (in this case an investigation report) preparation but remember policing may be different skill set to workplace investigation.

As an employer or HR professional you are able to ‘shop around’ for the investigator you want and who you feel comfortable with and also a price you are happy to pay.

While outsourcing may take away the stress of the day to day handling of the matter, you should still maintain a level of control, this is achieved by setting out a clear ‘terms of reference’ at the start and discussing and approving the investigation plan, see http://awpti.com.au/investigations/engage-awpti/

During the course of the investigation it is also important to establish points of contact, milestones and communicate with the investigator on an on-going basis through-out the investigation to ensure that the investigation is carried out in a timely manner.

Finally the investigator should be available to disuses their final report and debrief the parties  should you wish them to do so.

In part 2 I will discuss how to conduct the investigation internally.

AWPTI – workplace investigations in 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/

AWPTI can assist you with by conducting misconduct investigations, the Principal Phil O’Brien is a highly experienced and skilled workplace investigator, Lawyer and former member of the NSW Police who can guide you through the minefield of sexual harassment investigations.

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.

responding sexual harassment complaints

 

 

Anti Bullying Application rejected – Reasonable Management Action.

A case of Reasonable Management Action. On 19 August 2016, the Fair Work Commission handed down a decision dismissing an order to stop bullying. This was only the seventh of its type relating the FWC’s bullying jurisdiction.

In Xiaoli Cao v Metro Assist Inc; Rita Wilkinson, the Applicant,  employed y a charity, sought orders from the FWC against her manager to stop bullying under s 789FC of the Fair Work Act 2009.

The alleged bullying conduct included overloading her, increasing her workload, requesting she perform “unreasonable” tasks, making accusations about her work ethic and demeaning her in front of her work colleagues and other allegations.

Notwithstanding steps taken following two mediation sessions, the Applicant filed a general protections claim on 12 January 2016 and made a bullying complaint to SafeWork NSW.

In exercising its jurisdiction, the FWC considered the Applicant’s evidence that her manager’s actions were not reasonable management action carried out in a reasonable manner.

The employer gave evidence that the actions taken did not constitute bullying and that, where possible, it had actioned the Applicant’s requests to address her concerns and also established measures to rebuild the work relationship between the two parties.

The Commission found that the evidence did not support allegations of unreasonable behaviour by the manager and that the employer had executed reasonable management action and also carried out fair and transparent investigations into her allegations.

This decision demonstrates how reasonable management action done in a reasonable manner will not be considered as workplace bullying.

If you are your managers are unsure about what is and what is not reasonable management action and workplace bullying, I strongly recommend you consider the AWPTI Management Essentials training program, details can be found at http://awpti.com.au/management-training/

AWPTI – workplace investigations in 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 full text of the decision can be found here- https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5592.htm

Reasonable Management Action

 Addressing Workplace Bullying

Addressing Workplace bullying, harassment and sexual harassment are common problems faced by many employers and organisations. If not addressed the behaviour of a few can lead the detriment of others and to a large and potentially costly headache for the business.

In recent times there have been a number of very costly judgements being awarded against employers for breaching their duty of care to employees who were the victims of bullying, harassment and sexual harassment in the workplace.

Addressing workplace bullying, harassment and sexual harassment is not a simple fix, however there are things you can and should do.

Here is a four step method to;

  1. Take reasonable stops to respond to and reduce workplace bullying, harassment and sexual harassment in the workplace.
  2. Cover the business if complaints are made
  3. Promote an inclusive workplace culture
  4. Be seen as an employer of choice

Step 1

Have well written and up to date policies and procedures in place.

Be warned however, bullies and harassers ignore policies, but policies are the law in your company and a breach may be grounds for dismissal. If you don’t have the laws in place, bullies and harassers can behave with impunity.

If you don’t have up to date policies in place we can help – http://awpti.com.au/backup/hr-support/

Step 2

Have training in place designed to clearly outline your policies and the behavioural expectations the company has of its employees.

Again be warned, bullies and harassers ignore training, but if they breach a policy they cannot say “I wasn’t told.” If they are recorded and having undertaken the training, especially with face to face training, where they can’t use excuses like ‘the system was down’, or ‘I missed that bit’.

Good training must include the definitions of what is and what is not bullying, harassment and sexual harassment in the workplace and include the sanctions for breaching policy and being a bully or harasser.

If you don’t have effective workplace training in place we can help – http://awpti.com.au/backup/training/

Step 3

Have a robust and impartial investigation process in place. Make sure that if employees breach policy or act in a bullying, harassing and sexual harassing manner they will be dealt with.

Often engaging an external and professional investigator will send the message that you are not mucking around.

Step 4

Follow up on substantiated findings of bullying, harassment and sexual harassment with decisive action, it may be another case of sending a message that bullying, harassment and sexual harassment will not be tolerated and will be dealt with.

A note of caution;

You must ensure that all investigations are carried out in the professional manner affording the alleged perpetrator procedural fairness including;

  • The right to know the allegations made against them
  • The right to be hard and have their version of events taken into consideration
  • The right to a final determination based on the evidence
  • The right to an unbiased decision maker.
  • The right to a support person during interviews and meetings

Other considerations are;

  • The investigation methodology
  • The rules of evidence
  • Timing of the investigation (including how long it took)

Organisations should not fear taking decisive disciplinary action if they follow correct procedure.

When it comes to conducting a full, professional, timely and cost effective workplace investigation we can help

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/

For more information:

www.awpti.com.auenquiries@awpti.com.au  or 02 9674 4279

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 complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.

 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.

Recently at the Fair Work Commission employers have been penalised as a result of unfair Workplace Investigations.

Ensuring that Workplace Investigations are conducted in a timely matter is an important consideration at the FWC

In Australian Rail, Tram and Bus Industry Union v NSW Trains [2016] the Fair Work Commission found that there were unreasonable delays in the investigations of a safe working incident involving two train drivers.

The incident occurred in June 2014 and the outcome of one of the investigations was determined in May 2015. The Commission found that this period of 11 months was “excessive and unreasonable”.

The Commission found that the circumstances of the case did not justify this amount of time and delay – the drivers had admitted to breaching the employer’s policy from the outset and the Commission found there was little to consider other than responses from the two drivers regarding mitigation. Another investigation took around six weeks despite there being “nothing complex to determine”.

The employer argued that the reason the investigations took so long was because it was complying with its policies and procedures and because of the Christmas period. However, the Commission was critical of these processes, noting that “justice delayed is justice denied”.

The Commission did not accept that the Christmas period as a reason for delay, noting “Trains does not stop its operations over Christmas and nor should investigations affecting the livelihood and wellbeing of employees”.

Lesson for employers: Investigations should be conducted in a timely manner, failure to do so could be considered to be unfair, being investigated is stressful whether or not you are guilty of the alleged behaviour, put yourself in the shoes of the respondent.

In Cherunkunnel v Alfred Health [2015] an employee lodged a grievance under the enterprise agreement concerning his employer’s decision to issue him with a final warning and to demote him following a complaint made against him by a fellow nurse. The employee was stood down while the matter was investigated.

The Commission considered whether the investigative procedure adopted by the employer complied with the relevant enterprise agreement. The applicant argued that his employer did not comply with the enterprise agreement because he was not interviewed.

The enterprise agreement contained a number of procedural requirements, including that an employer must take all reasonable steps to give the employee an opportunity to answer the allegations, and to conduct a fair investigation.

The Commission found that providing the employee with a reasonable opportunity to answer any allegations and concerns could “realistically only take place during an interview” which ought to have formed part of the investigation.

The Commission found that if the employee is not interviewed as part of the investigation, then it would not have been conducted in a fair manner as the investigator would be making recommendations based on one side of the story.

Further, the employee was required to respond to a recommendation that he show cause as to why his employment should not be terminated without having been heard in relation to his version of the events prior to the investigator forming a view or making a recommendation.

The Commission found this approach to be procedurally unfair but concluded that the employer, in not terminating the employee’s employment but deciding to issue him with a final warning, took an appropriate approach in dealing with the issues relating to his nursing practice.

Lessons for employers: Procedural fairness especially the right to be heard should be considered as being “set in stone” it doesn’t have to be in the EBA to be a principle to be adhered to.

 

It is often wise to call in an expert to assist with Workplace Investigations, AWPTI can take the stress out of Workplace Investigations –  http://awpti.com.au/backup/investigations/

The author Phil O’Brien is a highly experienced and skilled provider of Workplace Investigator and training who can take the stress out of conducting Workplace Investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.

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 me on 0409 078 322 or phil@awpti.com.au

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

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.

Employee Investigation

What if the employee does not want an investigation into their complaint?

Employee investigation – This is a common question that I am asked and one that many HR professional are face with when an employee does not want an investigation into a complaint that they have made to you.

Remember people change their minds, people listen to other people and have their minds changed

In some circumstances, an employee may raise a workplace issue with their employer or make an “informal” complaint but does not wish for any formal action to be taken, as was the case in Swan v Monash Law Book Co-operative (Swan v Monash).

Remember that it is the responsibility (duty of care) of the employer to protect its employees against unlawful behaviour and conduct in the workplace.

As a result, sometimes irrespective of an employee’s views on how their workplace issue should be managed, once an employer or HR professional becomes aware of an issue, it is imperative that the employer considers the potential risks arising from the complaint, and makes an assessment about the extent to which the issue should be investigated and the process for doing so.

Time for a shift in thinking

Think about it this way, once an employee has made a complaint the ownership of that complaint now rests with the HR professional or manager who received the complaint. What happens with or to the complaint will rest with you as will the consequences of not doing anything.

The case of Swan v Legibook – Supreme Court of Victoria – 26 June 2013 illustrates what can happen and can result in a breach of duty of care due to a failure to investigate a bullying complaint.

The applicant made complaints of workplace bullying in 2003 (the informal complaint) and formal complaints in 2005, she left Legibook in 2007 had not worked since.

The employer in Swan v Monash failed to promptly act on the employee’s workplace bullying complaint because when the issue was first raised by the employee, the employee did not wish for any formal action to be taken.

This delay (and of course the underlying conduct complained of) ultimately resulted in the employer being ordered to pay damages to the employee for the severe psychological injuries that she suffered

The applicant claimed anxiety, depression, and other physical conditions, she was awarded $600,000.00

Lessons for employers;

  1. In matters of bullying, harassment, sexual harassment and discrimination you have to make a decision to investigate, consider the risks to the business, YOU own the complaint now.
    (If you are not sure contact me for a copy of the AWPTI Risk Assessment Chart and Complaint Analysis Chart.)
  2. If things hit the fan, the buck stops with YOU.
  3. Just like pass the parcel, when you are holding the complaint and the music stops if you haven’t done anything about it you may be out.
  4. Just because an employee says I don’t want anything done it doesn’t mean that they won’t change their mind.
  5. Ensure that your managers are aware of their duty of care to employees and understand the need to investigate complaint matters.
  6. Investigate complaints of this nature thoroughly and in a timely manner.
  7. If in doubt call an expert

Don’t be caught out, for assistance with complaint investigation contact us www.awpti.com.au/investigation  or training www.awpti.com.au/training

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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 and provide you and your employees with up to date a relevant training in the areas of misconduct, investigations, procedural fairness, reasonable management action, performance management, bullying & harassment and other issues facing employers and workplaces.

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.

 

 

 

Question – summary dismissal do you have the grounds

Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal.

Employers should always think very carefully and thoroughly consider the options before making a decision to immediately or “summarily” dismiss an employee. For summary dismissal to be lawful there must have been a breach by the employee of either an express or implied term of the contract of employment that is serious enough to necessitate an employer to undertake an action of summary dismissal.

 

I recommend before summary dismissal action is taken employers do the following:

  • Investigate the matter carefully to ensure that you have enough information and evidence upon which to make your decision. If the presence of the subject employee in the workplace causes concern consider suspending them until the conclusion of the investigation.
  • Review the employee’s record. Does this person have a long history with the company? Is this person a first or repeat offender? These are matters that could be taken into account.

Summary dismissal of a long standing employee with a good or unblemished record can be problematic.
Your options should be carefully considered

  • Review your options. Would dismissal with notice be a better option? What are other options – demotion, counselling or training?
  • Don’t allow the fact that you may save some money by summarily dismissing an employee to affect your judgement. This course of action could be more costly in the long run.
  • Resist the temptation to ‘make an example’ of instances of employee negligence with summary dismissal. It is always best to ensure that disciplinary action is fair and thorough and that the outcome is proportionate to the conduct that has occurred.

 

Here are some cases that highlight differing views of summary dismissal:

In Bruce v AWB Ltd [2000] FCA, the Federal Court of Australia stated that mere misconduct is not considered as sufficient grounds to warrant immediate dismissal. For a summary dismissal to be lawful the employee’s conduct must be judged serious enough that summary dismissal is the only option.

In Concut Pty Ltd v Worrell [2000] HCA 64, Kirby J stated that it is “only in exceptional circumstances” that an employer is entitled to dismiss an employee summarily. His Honour went on to state that generally, acts of dishonesty of similar conduct that destroys the mutual trust between the employer and employee fall within the class of conduct which would allow a lawful summary dismissal.

In Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044 (Smith), the FWC ruled that swearing at a managing director during a heated phone call was not sufficient cause for summary dismissal. The FWC ruled that the conduct was not ‘sufficiently insubordinate’ for him to be dismissed because the conversation was not overheard by other employees, meaning it had not undermined the managing director’s authority in the workplace.

 

On the other hand:

In John Pinawin t/a RoseVi Hair Face.Body v Edwin Domingo [2012] FWAFB 1359 the Full Bench accepted that the summary dismissal of a hairdresser whose work performance was adversely affected by his drug use was fair, but warned the same conclusion would not necessarily be reached in all cases of out-of-hours misconduct – an issue on which the Full Bench made some interesting observations that pertain to all employers.

In Lloyd & Co Pty Ltd v Shuttle ([2016] FWCFB 144) the employee had sent a series of emails to other staff members that were highly critical and disparaging of the managing director.

The Commission ruled that the managing director’s feelings of betrayal as a result of the employee’s personal hostility and disloyalty were reasonably held. The managing director had direct evidence of disloyalty in the form of the emails

As you can see summary dismissal is not cut and dry, I recommend careful and expert investigation of misconduct incidents that could result in summary dismissal.

The peace of mind of getting it right outweighs the cost of an expert investigation.

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 suitably qualified and experienced workplace investigator