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Unfair dismissal flawed investigation

Unfair dismissal flawed investigation – Workplace investigations may be necessary part of business but are often complex and difficult to conduct, especially for the untrained and inexperienced.

A question that is generally raised after a complaint has been lodged is whether to conduct the investigation internally or to obtain external investigation assistance.

Before relying on the findings of an investigation especially when terminating an employee, employers must consider whether the investigation itself and its findings are sound and can be supported by the facts.

In the case of Jennifer Walker v Salvation Army (NSW) [2017] FWC 32 the internal investigation was found flawed due to reliance on false assumptions.

Link to case: http://www.austlii.edu.au/au/cases/cth/FWC/2017/32.html

In this unfair dismissal case at the Fair Work Commission, the applicant Ms Walker was the manager of the Salvation Army’s store in Lidcombe, Sydney. She had been an employee of the Salvation Army for 11 years and during that time had an unblemished employee record.

In July 2016, Ms Walker served a customer who wished to purchase items of furniture. Ms Walker did not enter a sale and provided the customer with a handwritten document indicating she had set aside certain items.

The customer arrived later in the week to pick up the furniture. The customer claimed he had paid $200 in full for the furniture, however, there was no record of sale. The Salvation Army subsequently investigated the issue. The investigation consisted of a review of the CCTV footage and discussions with Ms Walker and the customer.

The Salvation Army believed the customer’s account and that the CCTV showed Ms Walker had received $200 cash from a customer as payment for furniture he was purchasing.

The CCTV footage showed that while dealing with the customer, Ms Walker had at least $50 in her hand. Ms Walker denied receiving any money from the customer. The Salvation Army terminated her employment for serious misconduct (theft).

In considering the case, Senior Deputy President Hamberger noted that the more serious the alleged conduct the higher the standard of reasonable satisfaction is needed to be applied when determining whether the conduct occurred.

SDP Hamberger found that the evidence demonstrated that Ms Walker was holding a $50 note in her hand, but it did not establish that she had received that money from the customer. SDP Hamberger concluded the customer had not paid Ms Walker for the furniture and as a result held that Ms Walker had not engaged in serious misconduct and that her termination was unfair

SDP Hamberger was surprised at the lack of rigour in the internal investigation and that the Salvation Army so readily accepted the customer’s claims that he had paid ahead of the account of Ms Walker.

In finding that the dismissal was unfair, SDP Hamberger considered the criteria in section 392 of the Fair Work Act 2009 and awarded the Store Manager the maximum available compensation of twenty six weeks’ pay equating to $22,404.50.

Lessons for employers

When conducting a workplace disciplinary investigation, employers should undertake the following:

  • Ensure that the employee is afforded procedural fairness especially the right to be heard
  • Ensure that the employee is provided with an opportunity to respond to the allegations. This involves providing the employee with sufficient details of the alleged conduct in writing.
  • In the case of CCTV evidence, it is recommended that employers, ensure that the employee are permitted to view the footage prior to providing a response.
  • Genuinely consider different or alternative explanations for the alleged conduct, and ensure all available evidence is gathers from witnesses and duly considered.
  • Consider any mitigating circumstances prior to making a determination in regard to disciplinary action such the length of service or employment record and past behaviour of the employee.
  • Ensure impartiality and avoid making assumptions of guilt prior to the completion of a fair and thorough investigation;
  • Provide the employee with the opportunity to have a support person present, including providing the employee with sufficient opportunity to find an appropriate support person; and
  • When in doubt, consider other opinions before terminating.

This decision in this case demonstrates the disadvantages of undertaking an internal investigation which was not thorough and made assumptions (that is, the customer’s account was truthful), rather than taking a more open minded approach to all asserted facts.

If in doubt call an expert, getting a workplace investigation wrong can be costly both in terms of money and reputation.

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/

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.

 

Social media case

Social media case – Recently at the Fair Work Commission in the case of Renton v Bendigo Health Care Group [2016] FWC 9089, it was highlighted that employers need to consider the appropriateness of penalties and having policies in place when considering a decision to terminate employees for misconduct and is a reminder about the use and abuse of social media in the workplace

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc9089.htm

In the Renton case, an employee of Bendigo Health Care Group was found to have been unfairly dismissed despite ‘tagging’ two of his colleagues in an offensive and sexually explicit video post on Facebook and on the same day had also left blobs of sorbolene cream and tissues on the desk of a colleague tagged in the video.

That colleague complained about the two incidents and the employer dismissed the employee for serious misconduct.

Commissioner Bissett found that the employee had:

  • negatively affected the health and safety of colleagues
  • engaged in conduct that had the potential to damage the employer’s reputation
  • exposed his colleagues to humiliation and ridicule at work.

The Commissioner stated,

“Whilst Mr Renton is apologetic, he has displayed a lack of insight into the effect of his post on his colleagues – even at the hearing of his application he failed to appreciate that it caused real offence. To this extent, I am not sure the basis of his apologies. He compounded his Facebook misdeed by placing blobs of sorbolene cream on Mr Christie’s desk. That act was boorish.

Having said this, however, I consider, on fine balance, that the decision to terminate Mr Renton’s employment was harsh in that it was disproportionate to the gravity of the misconduct.”

Mr Renton has no history of misconduct at work. Whilst it is apparent he and Mr Christie have exchanged ‘jokes’ in the past, not dissimilar to the sorbolene incident, this has gone unremarked by either of them, their colleagues or management (if it was aware of these ‘jokes’). Further, the Facebook posting and its naming of work colleagues and ‘work’ is a one-off incident. Mr Renton had not drawn such connections in the past. Whilst Mr Renton’s insight into the incident may be questioned it can only be hoped he has learnt from his conduct. Further, there was no suggestion that the incident had any adverse effect on any other aspect of Mr Renton’s work.

Commissioner Bissett held that the behaviour was a one-off nature and that there had been a lack of previous misconduct. Having found the dismissal of the employee to be harsh and as a result Mr Renton was unfairly dismissed.

Commissioner Bissett considered that the incident was an isolated one and his employment history was otherwise spotless.

Getting termination right.

This decision suggests that employers must consider a number of issues when deciding to terminate an employee such as:

  1. The nature of the incident
  2. Past behaviours and employment history, including length of service
  3. If policies are in place and did the behaviour breach the policy
  4. Are options other than termination more appropriate.
  5. Does the punishment fit the crime, as matter also addressed in Dawson v Qantas Airways Limited (2016) FWC 8249 – http://awpti.com.au/fwc-unfair-dismissal/

It is recommended that employers have in place

  1. A clearly written social media policy
  2. Training that clearly outlines the contents of the policy so that employees understand the behavioural expectations of the employer
  3. Investigate matters of this nature thoroughly and impartially before making final decisions.

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/

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 investigator

FWC Unfair dismissal

The importance of considering other factors when terminating employees

FWC unfair dismissal – A Qantas flight attendant who was sacked for stealing alcohol from a flight and lying about it was awarded $33,731 in compensation by the Fair Work Commission after it found that the decision to terminate his employment was harsh.

Link to case – Dawson v Qantas Airways Limited (2016) FWC 8249 https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc8249.htm

At the FWC Deputy Commissioner Lawrence concluded that the Applicant Mr Dawson was dismissed because he stole property belonging to Qantas and initially lied about how the alcohol came into his possession, he changed his explanation during an investigation into the matter.

While the amount of alcohol stolen by the Applicant was of small value, Qantas stated that they have a zero tolerance policy to theft including accidental theft. For these reasons, the FWC found that the conduct of the Applicant was a valid reason for termination.

When reviewing the procedural aspects of the termination, the DC Lawrence found that Qantas carried out proper investigation and disciplinary processes. However he also had an obligation to consider “any other matters” to reach a finding as to whether the termination was ultimately harsh, unjust or unreasonable.

As a general rule, the aim of considering what the FWC considers to be “any other matters” it must ensure that a “fair go all round” has been given to all parties.

In this case, the Deputy Commissioner Lawrence considered the factors argued by the Applicant should lead to a finding that his termination by Qantas was disproportionate to the crime committed including;

  • the Applicant’s had worked for Qantas for 28 years with an unblemished record of service as a long-haul flight attendant;
  • the value of the items stolen was small.
  • the age of the Applicant, at 50 it was considered that it would difficult for Mr Dawson to obtain future employment especially as a flight attendant;
  • While the Applicant initially gave an incorrect explanation of his actions, he did correct it later.
  • the Applicant argued that he had a number of medical and family issues prior to the incident.

Notwithstanding that the procedural aspects of the termination were fair and compliant with the Fair Work Act 2009, after taking these “other matters” into account, the Deputy Commissioner Lawrence concluded that the dismissal was harsh.

As a result of Qantas’ failure to properly consider the Applicant’s circumstances and the impact that the termination would have on the Applicant, the FWC felt it appropriate to award the Applicant compensation.

The FWC noted that the Applicant could have earned $1,011,930 for the remainder of his working life. Acknowledging the valid reason for termination and proper procedures, the FWC reduced the amount of compensation to $500,000.

The Applicant’s compensation was reduced again by the FWC to 26 weeks’ pay in accordance with the maximum compensation cap in the unfair dismissal jurisdiction under the FW Act.

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/

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.

 

 

Adverse action and award compliance – the cost of getting it wrong

The director of a Melbourne brothel has been ordered to pay a former receptionist compensation and penalties totalling $175,000 after subjecting a former receptionist to unlawful adverse action and failing to pay award entitlements.

In the case of Rosa v Daily Planet Australia Pty Ltd, the Federal Circuit Court accepted that the brothel’s sole director was knowingly involved in breaches and ordered that he was liable for the compensation awarded as well as personally responsible for part of the penalty.

The applicant Ms Rosa worked as a receptionist and had worked for the brothel from July 2008 until December 2011.  Ms Rosa was a single mother and had negotiated particular shifts.  Ms Rosa was paid a flat rate of pay, worked four days per week for 10.5 hours per day.  She was not paid sick leave, annual leave or other benefits beyond her hourly rate.  Further, it was noted she did not take her breaks nor was she paid applicable overtime rates.

After 3 years of employment, Ms Rosa was directed to sign an employment contract which provided that she was a casual employee.  When she challenged the proposed contract terms, her shifts were changed and she was subsequently told there was no more work for her because she didn’t have a manager’s licence that is was claimed was a requirement under the relevant legislation that the business be supervised by an approved manager at all times and Ms Rosa was only a few months away from being eligible to obtain a licence.

In the judgment, the Court noted that Ms Rosa had been employed for a significant period of time without a manager’s licence, yet when there was only two months before she could obtain a manager’s licence she was terminated for this reason.

The Court did not accept the Respondents defence who argued that the provisions of the Sex Work Act 1994 (Vic) that mandated that a brothel must at all times have an “approved manager” on site, and that the reason the Applicant was dismissed was because she did not hold a manager’s licence due to a drug offence

The Court agreed with Ms Rosa’s submissions that the termination occurred as a result of her refusal to sign the employment agreement. This agreement would have converted her employment to casual employment and she risked losing shifts she had specifically negotiated with the Respondent.

The Court found that the Respondent took adverse action in threatening to alter her employment arrangements and threatening to dismiss Ms Rosa and then subsequently dismissing her.

The Daily Planet Case should serve as a reminder to employers that they cannot terminate, threaten termination or detrimentally alter the position of the employee (such as changing an employee’s shifts) on the basis that they chose to exercise a workplace right.

It also reminds employers that the Courts will look to the “motivation” of the employer in its decision to take adverse action against another employee.

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/

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 002 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.

 

 

 

The National Employment Standards

The National Employment Standards (NES) are 10 minimum employment entitlements that are set out in the Fair Work Act 2009. The NES have to be provided to all employees. The national minimum wage and the NES make up the minimum entitlements for employees in Australia. An award, employment contract, or registered agreement can’t provide for conditions that are less than the national minimum wage or the NES.

Link to Fair Work Commission NES information

What are the 10 National Employment Standards (NES) entitlements?

The 10 minimum entitlements of the National Employment Standards (NES) are summarised below:

  • Maximum weekly hours of work –38 hours per week, plus reasonable additional hours.
  • Requests for flexible working arrangements – an entitlement for certain employees to request flexible working arrangements
  • Parental leave and related entitlements – up to 12 months unpaid leave per employee, plus a right to request an additional 12 months unpaid leave, plus other forms of parental and adoption‑related leave.
  • Annual leave – four weeks paid leave per year, plus an additional week for certain shift workers.
  • Personal/carer’s leave and compassionate leave – 10 days paid personal/carer’s leave, two days unpaid carer’s leave as required, and two days compassionate leave (unpaid for casuals) as required.
  • Community service leave – unpaid leave for voluntary emergency activities and leave for jury service, with an entitlement to be paid for up to 10 days for jury service.
  • Long service leave – a transitional entitlement for employees that comes from an applicable pre‑modernised award, pending the development of a uniform national long service leave standard.
  • Public holidays – a paid day off on a public holiday, except where reasonably requested to work.
  • Notice of termination and redundancy pay – up to five weeks notice of termination and up to 16 weeks severance pay on redundancy, both based on length of service.
  • Fair Work Information Statement – must be provided by employers to all new employees, and contains information about the NES, modern awards, agreement-making, the right to freedom of association, termination of employment, individual flexibility arrangements, union rights of entry, transfer of business, and the respective roles of the Fair Work Commission and the Fair Work Ombudsman.

Who is covered by the NES?

All employees in the national workplace relations system are covered by the NES regardless of the award, registered agreement or employment contract that applies (however only certain entitlements apply to casual employees).

Casual employees only get certain NES entitlements which are:

  • two days unpaid carer’s leave and two days unpaid compassionate leave per occasion
  • maximum weekly hours
  • community service leave (except paid jury service)
  • to reasonably seek a day off on a public holiday
  • the Fair Work Information Statement.

In some states and territories long serving casuals are eligible for long service leave.

In addition, where there is an expectation of ongoing work for a casual and the casual has been employed regularly and systematically for at least 12 months, they have extra entitlements from the NES. These are:

  • the right to request flexible working arrangements
  • access to parental leave.

There are two NES entitlements that apply to all full-time and part-time employees, whether they are covered by the national workplace relations system or not. These are:

  • parental leave and related entitlements
  • notice of termination.

How do the NES cover employees?

The national minimum wage and the NES make up the minimum entitlements for employees in Australia.

An award, employment contract, or registered agreement can’t exclude or provide for conditions that are less than NES, and those that do have no effect.

Awards and registered agreements can detail how the NES work.

For example, they may set out details about:

  • averaging an employee’s ordinary hours of work
  • cashing out and taking annual leave
  • taking annual leave in advance
  • taking excessive annual leave
  • cashing out personal/carer’s leave
  • taking time off instead of payment for overtime
  • substituting public holidays
  • when redundancy pay entitlements do not apply.

Awards and registered agreements can also supplement the NES by providing entitlements that are more favourable for employees.

In addition, employers and award and agreement-free employees (meaning they are not covered by an award or agreement) may also make agreements that affect certain ways the NES works.

Employers and award and agreement-free employees can make agreements about:

  • averaging hours of work
  • cashing out or taking annual leave
  • substituting public holidays
  • getting extra annual leave in exchange for foregoing an equivalent amount of pay
  • getting extra personal/carer’s leave in exchange for foregoing an equivalent amount of pay.

Employment contracts can only provide entitlements that are similar or more favourable to the employee.

An employer must not contravene a provision of the NES. A contravention of a provision of the NES may result in penalties of up to $10,800 for an individual and $54,000 for a corporation.

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/

Big IR fines proposed

Employers are being urged to ensure that they review their efforts to comply with industrial instruments and the National Employment Standards, in light of big IR fines proposed following the introduction of a Fair Work Amendment Bill to Parliament last week.

The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 proposes increasing fines 10-fold – to more than $500k – for “deliberate and systematic” IR breaches, and it will also mean companies and franchisors will be held liable for breaches by subsidiaries and franchisees where they knew or ought to have known about contraventions and didn’t prevent them.

The Fair Work Ombudsman will have powers similar to those held by regulators such as ASIC and the ACCC in being able to compel individuals to attend interviews, and override privilege against self-exposure to penalties.

The proposed legislation is not targeted just at franchisors, all employers to ensure they’re covering their bases as most prosecutions generally involve multiple breaches, penalties often come to hundreds of thousands of dollars. This could now become millions where deliberate breaches are concerned.

AWPTI – workplace investigations in Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Workplace investigations – misconduct, bullying, harassment & sexual harassment investigations

Swearing in the workplace is it a sackable offence?

While it may be argued that swearing has become more acceptable in general use, swearing in the workplace may not be.

It is important to note that swearing at work may constitute bullying, harassment or discrimination depending on the circumstances.

What do employers need to consider when deciding if they should or are able to take disciplinary action regarding this are;

  • The culture of the workplace, it might be argued that swearing could be more common and or acceptable in a factory or a mine site than in a corporate office and therefore this can will affect the expectations of the employees.
  • The nature of the offence insofar as what was said and to who.
  • The level of offence taken by those subject to the swearing, was it directed at a person or persons or as a general vent.
  • Was it part of a pattern of behaviour
  • Is there a policy or section of a Code of Conduct that outlaws swearing in the workplace?
  • Your policies and your Code of Conduct are the rules, the law in your organisation, they must clearly set out the behavioural expectations for all employees. Do you have them in place?
  • Has swearing been allowed or not in the past, history is very important as a consistent attitude must be shown, one rule for all, all the time.
  • It is equally important that employees found breaching any rules against swearing at work are also treated with consistency.
  • Has there been training conducted outlining the behavioural expectations.
  • Is there a system of recorded warning for breaches?
  • The history of the alleged wrong doer is important, in this a one off, is the employee general well behaved and productive.
  • Does the punishment fit the crime?

The Fair Work Commission has in the past found that an employer was justified in dismissing a worker who swore at his supervisor on the basis that he had been previously warned in writing not to use inappropriate language at work.

But the Commission went on to say it would not have found in favour of the employer if there had been evidence other employees had acted in a similar manner with less or no disciplinary action.

In another case, the Commission found in favour of an employee who was sacked for sending an abusive text message to a colleague during protected industrial action and ordered reinstatement.

The Commission found that while there was a valid reason to terminate the employee, it was disproportionate insofar as it was inconsistent with the approach taken in other similar incidents. Evidence before the Commission suggested there was a culture of workplace swearing, and that previous instances had not been dealt with by dismissal.

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.

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 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.

 

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

Vicarious liability under Australian law

The doctrine of vicarious liability effectively serves to render employers liable for the wrongful acts of their employees in so far as those acts are committed in the course or scope of their employment. Generally, if it can be said that the employment relationship created both the “opportunity” and the “occasion” for a wrongful act to take place, the employer will be held liable. This was recently discussed in the High Court in the matter of  Prince Alfred College Incorporated v ADC [2016] HCA 37 a matter involving sexual assault

Previous cases have also been decided by reference to the sufficiency of connection between the wrongdoing and the responsibilities of the employee and by the identification of material circumstances or “features” common to certain kinds of cases.

The courts’ focus has generally been to look at the extent to which the employment relationship enabled or facilitated the commission of the wrongdoing.

The “relevant approach”

Drawing from previous judgements, the High Court prescribed the adoption of what it described as “the relevant approach”. According to the relevant approach, the court must consider any special role that the employer has assigned to the employee and the position in which the employee is thereby placed in relation to the victim.

The HCA then went on to state that in determining whether the apparent performance of such a role may be said to give the occasion for the wrongful act, particular features may be taken into account. Clearly contemplating crimes of a sexual nature, it asserted that such features include authority, power, trust, control and the ability to achieve intimacy with the victim.

Applying the relevant approach to the case before it, the HCA stated the appropriate enquiry was whether the employees role as housemaster placed him in a position of power and intimacy in relation to the victim, such that his apparent performance of his role as housemaster gave the occasion for the wrongful acts, and that because he misused or took advantage of his position, the wrongful acts could be regarded as having been committed in the course or scope of his employment.

Significance of the case

This case offers a crucial lesson to employers who might not otherwise realise that they may be held liable for the unlawful acts of their employees, even where they themselves are not at fault.

The HCA has affirmed that each case must be determined on its individual facts and merits. The consequence is that considerable uncertainty and expensive litigation is certain to ensue in cases of this kind.

Employers should ensure that the parameters of their employees’ roles are well defined to minimise the risk of liability arising for acts said to occur in the course of an employee’s duties.

The types of scenarios where employers may be particularly vulnerable to a claim of vicarious liability include schools (and especially boarding houses), hospitals, care facilities, disability clinics and many more (keeping in mind the fact that such claims are not limited to circumstances involving sexual assault or even criminal activity in general).

In order to try and minimise their risk, employers should check:

  1. that their policies and employment agreements, including codes of conduct, specifically prohibit sexual harassment; and
  2. that appropriate training is conducted
  3. Have a trust reported mechanism in place and investigate matter thoroughly when reported.
  4. Have a proactive investigation mechanism in place when matters or suspicions come to light.

AWPTI can provide you with training and investigation services to help protect you 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/
http://awpti.com.au/training/

Details of the case – http://www.austlii.edu.au/au/cases/sa/SASCFC/2015/161.html

Lorna Jane case.

The Lorna Jane case where an employee is suing her employer over bullying claims is currently before a court in Brisbane.

The company’s head of people and culture, Emily Bourke, addressed the media at lunchtime today saying:

As an employer of more than 2,000 people we take the claims being taken against the company very seriously,” 

“We have conducted a through internal investigation and vehemently deny Ms Robinson’s claims.”

“We have workplace policies and procedures in place that very clearly state the company’s position on workplace bullying and harassment and it was not tolerated in any circumstances.”

“This is the first time in the company’s 27-year history that we have been involved in proceedings of this nature.”

It is worth noting that there is a common perception (true or not) that internal investigations may be biased, subject to conflict of interest and favour the employer.

Whether or not it is your first complaint, to ensure a through independent investigation that is not biased investigation or subject to claims of a conflict of interest, it is recommended that the investigations into complaints of bullying, harassment, sexual harassment and discrimination are outsourced to a professional and experienced investigator – we can help http://awpti.com.au/investigations/

The cost of an external investigation will likely be far less than the cost of defending the matter in court.

For more details of the article relating to this case – http://www.abc.net.au/news/2017-02-15/former-lorna-jane-employee-amy-robinson-break-down-in-court/8271576

More details about this case –http://www.9news.com.au/national/2017/02/14/14/04/qld-lorna-jane-bullying-trial-begins?

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/