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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/

 

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 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/

Support person – workplace investigation

Support person – workplace investigation – All you wanted to know about a support person but were too afraid to ask.

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.”

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.

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.

Please note under some EBA’s the support person mostly union representatives are provided with the authority to advocate on the employee’s behalf. If that is the case you can rest assured that the union rep will let you know.

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

Can you refuse the interviewee a support person?
No, not unless you want to fall foul of s387 ss(d).

Can you decide who the support person can be?
No.

Can you decide who the support is not?
Yes, if the person is a witness in the matter, a co-respondent, a child or if the person is apparently unsuitable. In the case of union officials or other officials, if the proposed support person has been the support person for the other party in an investigation.

What happens if the support person is prompting the interviewee?
This can actually be helpful as they may have discussed the matter beforehand and the support person may be helping the interviewee to recall events. 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 ensure the support person is aware 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

Can I eject a support person from the interview if they are becoming too disruptive?
Yes 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.

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/

Procedural Fairness – Workplace Investigation Procedural Fairness – Workplace Investigation – When conducting any misconduct workplace investigation, grievance investigation, performance management or any other disciplinary process it is vitally important that employers ensure that employees involved at afforded procedural fairness. Many unfair dismissal applications are successful at the Fair Work Commission due to the absence […]

Unfair dismissal recently at the FWC

On 10 January 2017 an unfair dismissal hearing at the FWC in Melbourne upheld the summary dismissal of a worker who tested positive for cannabis after a car accident, despite the arguments that the employee was denied procedural fairness.

In Albert v Alice Springs Town Council, Commissioner Wilson found that the employee was fairly dismissed after having failed the drug test despite the employer not providing Mr Albert with the opportunity to respond to the drug test results.

The Commissioner’s held that the employee’s misconduct outweighed any procedural faults in his dismissal , in addition that it wasn’t obvious that failing to provide the worker with procedural fairness would lead to a finding he was unfairly dismissed.

Facts

In July 2016, Mr Albert was involved in a motor vehicle accident while driving a council truck, he was required to undergo a urine test which identified THC in his system that was 73 times higher than the Council’s ‘cut off’ level of 15 micrograms per litre.

The extremely high reading led the Council to summarily dismiss Mr Albert cited that his behaviour was serious misconduct in that it represented a danger to himself, other workers and the public.

Mr Albert filed an application for unfair dismissal arguing the Council had not provided him with the relevant paperwork when he took the urine test, and refused to give him copies of his results.

Although Commissioner Wilson found the Council had not provided the worker with procedural fairness, he held the dismissal was justified as the Council had a valid reason to dismiss the worker because his job involved safety-critical work.

Despite these defects in the Council’s internal disciplinary process, Commissioner Wilson held the dismissal was not harsh, unjust or unreasonable because the outcome of the disciplinary process would have been the same even if there had been no such defect.

As such Commissioner Wilson found that the seriousness of the worker’s actions outweighed the procedural faults of the Council in its decision to dismiss the worker. Further, had the procedural faults been remedied, and the Council formally put the test result to the worker, it would have been unlikely to affect or alter the ultimate outcome of the matter.

Lesson for employers

In most cases in relation to unfair dismissal, failure to afford procedural fairness before dismissing an employee will, result in a finding that the dismissal was unfair, resulting in either the reinstatement of the employee (when considered appropriate) or payment of compensation.

In very clear cases of serious misconduct, a lack of procedural fairness might save you from liability on an unfair dismissal claim, it is recommend that you still ensure that you provide procedural fairness and save yourself the argument later.

Have a well drafted drug and alcohol policy which clearly states what is acceptable behaviour and the consequences of any unacceptable behaviour will assist employers with disciplinary outcomes should an employee record a positive test result

Full decision – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc73.htm.

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/

Australian Workplace Training & Investigation can assist you 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. http://awpti.com.au/about-awpti/

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.

Unfair dismissal

Responding to sexual harassment complaints 2

Part 1 on this subject (more details) dealt with outsourcing investigations, in responding sexual harassment complaints 2 I will outline a procedure that can be followed if as manager or HR professional you choose to conduct the investigation internally.

Investigations are conducted internally for a number of reasons including, cost, availability and internal processes and procedures.

This article provides an overview of how to conduct an internal investigation. Please note it is an overview only, conducting an investigation is a complex and often time consuming matter requiring a high level of expertise.

There are many procedural steps during an investigation that are not included here for the purpose of brevity.

Should you wish a complete guide for conducting workplace investigations I have created a comprehensive investigation toolbox contains 35 documents (including template letters, interview plans, sample reports) and an Investigation Interview Manual. http://awpti.com.au/investigation-toolbox/

Complaints of sexual harassment

Generally complaints will be made either in person verbally or in writing, most commonly via email.

Step 1.

If the complaint is made in person, the first step is to obtain as much detail as possible from the complainant at the time of reporting.

If the complaint is made in writing or email, I recommend that you review the complaint and any other documentation, print it off and Identify and highlight areas where further information is required.

Identify areas where clarification of information is required, questions such as the who, what, what did they do, when, where, what was said, was anyone else present, if so who?

Step 2

Once you have reviewed the complaint it will be necessary to formally interview the complainant. 

This will require you to draft an interview plan that should include questions designed to have the complainant clarify when they meant when they used descriptive words such as sexually harassed, bullying, harassing, intimidated etc

You should also draft questions to have the complainant clarify words they may have used such as touched, looked, leered, yelled, shouted, angry etc and questions to ascertain the nature of the relationship of the parties prior to and during the incidents complained about

Complainants often use emotive language you must be sure what they actually mean.

You do not need to write out every question you are going to ask, the interview should be organic and led by the answers you receive to the key points you have identified.

Step 3

Interview the complainant. 

Investigative interviewing is a skill in itself and is far too detailed to go into here.  I have produced an interview manual that has been designed as a practical guide for workplace investigation interviewing. http://awpti.com.au/investigation-interview-manual/

The manual will assist you in preparing, conducting and reviewing the interview upon completion.

During the complainant interview you should be seeking as much further information as possible and the answers to the questions you have previously identified, clarifying as much information as possible

Step 4

Review all of the information (evidence) from the complainant.

Draw up a list of witnesses and potential witnesses. Witness will tend to support or refute the information provided by the complainant.

Draft the interview as you did for the complainant

Step 5

Interview the witnesses.

You should seek to obtain information that either corroborates or refute the complainant information.

Witnesses may also provide further information that leads to new avenues of enquiry.

Step 6

Review all the information you have. Identify any gaps in the information and what if any further information is required.

If warranted, draft a letter of allegation to be provided to the person subject of the complaint, the respondent.

The letter of allegation provided to the respondent must contain sufficient detail of the complaint to allow them to respond. This is a component of procedural fairness.

Step 7

Interview the respondent, allow them the opportunity to respond to the allegations and provide their side of the event/s. This is also a component of procedural fairness.

During the interview the respondent may nominate additional witnesses, these witnesses should be interviewed in the same manner as witnesses nominated by the complainant.

Step 8

Review and analyse all the evidence and make a finding as to whether the allegations have been substantiated or not or are unable to be substantiated.

Step 9

Report your findings in a clear manner.

Step 10

Advise the parties of the outcome of the investigation.

As I mentioned at the start, conducting an investigation is a complex and often time consuming matter. The AWPTI Investigation toolbox is a highly recommended resource for you to have if you intend to conduct investigations internally. http://awpti.com.au/investigation-toolbox/

If is important to remember, if you are unsure consider calling in an expert. 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/

 

 

 

 

Recently at the Fair Work Commission – dismissal unfair

dismissal unfairRecently and the Fair Work Commission – dismissal unfair but no reinstatement or compensation – [2016] FWC 7982

The applicant Mr Nash Wong had worked for the employer for nine years’,  at the time of the dismissal he was a delivery driver.

It was alleged that applicant was involved in joint criminal enterprise in which applicant, along with other employees, stole products from respondent.

The employer became aware of alleged theft February 2016 however Mr Wong was not dismissal until May 2016

Mr Wong contended that there was no valid reason for dismissal and argued that  the dismissal related to complaints regarding entitlements and health and safety concerns, he further contended that there was insufficient evidence to prove alleged misconduct.

The employer contended that the belief of theft was established on reasonable grounds and therefore constituted a valid reason.

Commissioner Cambridge concluded on balance of probabilities, the applicant was involved in joint criminal enterprise – Briginshaw applied and found that there was a valid reason for dismissal, however it was highlighted that it was a procedural error for  the respondent to allow the applicant to continue employment between February and May 2016 despite knowledge of misconduct for which it summarily dismissed the applicant.

Commissioner Cambridge concluded that respondent was unable to summarily dismiss the applicant in those circumstances and was required to dismiss with notice [McCasker v Darling Downs], the dismissal was found to be unjust with reinstatement inappropriate but concluded that compensation was appropriate however when the Commissioner applied Sprigg and s.392 of Fair Work Act it was concluded that the applicant’s employment would have been likely to have been terminated within very short period, there was minimal efforts to mitigate loss and nature and severity of misconduct reduced compensation to zero – no order for compensation issued.

Lesson for employers:

  • In the case of suspected serious misconduct a thorough investigation is often required to establish all the facts – we can help http://awpti.com.au/backup/investigations/
  • Summary dismissal (often considered to be immediate dismissal) following serious misconduct usually means that perpetrator needs to be out of the business immediately, allowing them to stay for 3 months tends to negate the need to summary dismissal.
  • In this case there was no order for compensation, however the cost of an investigation would likely have been less than the time, cost and stress of defending this matter at the FWC

If you have an issue of misconduct in your workplace and are not sure what to do, contact Australian Workplace Training & Investigation for advice and investigation services – www.awpti.com.au

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 on 02 9674 4279 or 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.