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Workplace Investigator – Why you should have a trusted one on speed dial.

Workplace Investigator – Having a relationship with a workplace investigator that can provide your organisation with benefits when it comes to;

Priority

Complaints, grievances and allegations of misconduct are stressful for everyone, the parties involved and the organisation.  You need to have these matters investigated in a timely and professional manner.  In addition to the disruption to the workplace, courts and tribunal have criticised organisations for workplace investigations that were not carried out in a timely manner.

Having a relationship with a qualified and experienced Workplace Investigator will generally see you being given priority.  Recently I conducted interviews with 1 day of receiving instructions and interviewed some of the parties on a Saturday morning.

Quality

Most organisations don’t have to deal with complaints, grievances and allegations of misconduct on an everyday basis, so in most cases when they engage an external investigator they really don’t know what they are getting.

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

(2) Engage someone you know, someone you trust, someone you have at least met and discussed your needs with, someone whose background, experience and qualifications you have reviewed.

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

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

Cost

While I cannot speak for others, I provide special rates for my on-going clients.  It’s worth noting that I have observed, the bigger the investigation company, the more they charge and cost is not actually an indication of quality.

Advise to businesses

If you don’t have a relationship with a qualified and experienced workplace investigator take the time to meet with and get to know one, it could save you a lot of time, stress and money in the long run.

Please feel free to download my professional profile – Professional Profile Phi O’Brien

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/

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

 

 

Punishment must fit the crime

It is important for employers to remember when managing misconduct issues to ensure that the punishment fits the crime.

For example in the case of In Beamish v Calvary Health Care Tasmania Limited T/A Calvary Health Care Tasmania [2016] a matter involving the alleged misuse of internal communication a terminated employee was reinstated after it was found by the FWC that a reference to the Director of the Catholic Mission as “Mission Impossible” in internal emails was a misguided attempt at humour and not sufficiently serious to warrant termination.

The Fair Work Commission ordered the reinstatement after finding that “the punishment did not fit the crime”.

It is often the case that employers are unsure as to what course of action to take when dealing with misconduct, I advise the following;

  • Investigate the matter thoroughly ensuring that you gather and consider all the available evidence.
  • Ensure that you always afford the person subject of the complaint procedural fairness, the right to know what they are being accused of and the right that their response is heard and considered.
  • Take into account
    • o The nature and overall effect of the misconduct to the parties and to the organisation
    • o The employees history, length of time with the organisation and previous if any misconduct issues
  • Review options other than termination

Still not sure, contact AWPTI, we can take the stress out of dealing with misconduct issues for you.

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 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.

 

 

 

 


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.

HR Support – Does your business have up to date and compliant workplace polices in place?

HR Support – In the recent case of Shane Clayton v Coles Group Supply Chain Pty Ltd [2016] Fair Work Commission found that an employee who consumed cannabis before attending work was not unfairly dismissed for breach of the employer’s ‘zero tolerance’ drug and alcohol policy.

The applicant, Mr Clayton was employed by Coles at a distribution centre his job required him to operate manual handling equipment. Coles classed the distribution centre, as a high risk environment, had a ‘zero tolerance’ drug and alcohol policy.

in January 2016, Mr Clayton was involved in a forklift incident, it was accepted that the incident was not his fault; however Mr Clayton underwent an oral fluid drug test that returned a positive result for cannabis. Further testing confirmed the on-site test result.

On 1 February 2016, Coles conducted a disciplinary meeting and provided Mr Clayton with the opportunity to show cause as to why his employment should not be terminated. After considering Mr Clayton’s response, Coles terminated his employment summarily without notice or payment in lieu.

Mr Clayton argued that the dismissal was unfair because;

  1. He was advised during the induction training that he needed to ensure that he did not smoke marijuana within 3 to 6 hours of the commencement of his shift and he had complied with this.
  2. He reasonably believed that he complied with Coles’ drug and alcohol policy by leaving a considerably longer gap between his consumption of cannabis and his attendance at work.
  3. His consumption of cannabis was linked to workplace stress and was part of his strategy to manage that alleged stress.

 

The Commission found that Mr Clayton’s dismissal did not constitute unfair dismissal because:

  1. There were valid grounds for Mr Clayton’s dismissal. The Commission concluded that it was reasonable for Coles to have a zero tolerance drug and alcohol policy that should be consistently applied because of:
  2. The nature of the workplace: a busy environment with various vehicles and machinery being operated;
  3. the work health and safety risks associated with employees working under the influence of drugs in this type of environment; and
  4. the lack of an objective test for determining Mr Clayton’s impairment.
  5. Mr Clayton was notified of the reason for his dismissal.
  6. Mr Clayton was afforded a proper opportunity to respond to the allegations. It noted that the meeting on 1 February 2016 was adjourned to allow Mr Clayton time to consider the allegations and provide a response.
  7. Mr Clayton was accompanied by a support person in discussions concerning the matters leading to his dismissal.

The Commission held that while the use of cannabis for pain relief may be considered a mitigating factor, that factor needed to be weighed up in circumstances where Coles had a confidential scheme and policy that encouraged self-reporting problems without sanctions. The Commission also found that the employee used cannabis for recreational purposes.

While the Commission also acknowledged that there were potential dangers for an employer in providing information about detection periods as this may detract from the zero tolerance message, any information provided to Mr Clayton by Coles did not provide a mitigating factor because:

  1. The window of detection was given as an indicative guide only and could not reasonably be expected to represent a guaranteed safe or reliable withholding period given the context in which it was provided.
  2. The responsibility upon an employee not to attend work with any detectable drugs in their system was clear and understood.
  3. Mr Clayton was advised that if in doubt, he should not attend for work.

The Commission found that Mr Clayton had consumed cannabis on the morning before his shift, and could not be confident that his system would be clear of the drug when he attended work. He was therefore, at best, recklessly indifferent to his potential to breach the zero tolerance policy, and any confidence to the contrary could not be soundly based.

While the Commission held that the lack of notice or payment in lieu of notice would usually be a factor strongly supporting a finding that the dismissal was unfair, this was not decisive here. This was because Mr Clayton had misled Coles about the timing of his consumption of cannabis and could not have legitimately relied upon the indicative window of detection.

Lessons to be learned for employers

  • This case highlights the importance of having a comprehensive drug and alcohol policy that is consistently applied.
  • It is advisable to provide employees with training that clearly outlines their responsibilities in relation to workplace expectations and behaviours
  • Get good HR Support

If you organisation does not have up to date and complaint workplace polices in place and training for your employees, please contact AWPTI and allow us to assist you with HR Support – http://awpti.com.au/hr-support/

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 for HR Support

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

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 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

 

Beware of vicarious liability

Employers have a duty of care to ensure that they take all reasonable steps to ensure that there is nothing in the workplace that could cause an employee to suffer an injury or to contract an illness this includes taking reasonable steps to eliminate and/or respond to workplace bullying, harassment and sexual harassment. Failing to do so could mean that employers may be vicarious liability  for the bullying behaviours of an employee toward another employee.

vicarious liability as a result of a breach of  the duty of care can have serious consequences for employees and expensive consequences for employers.

The case of Eaton v TriCare (Country) Pty Ltd [2016] QCA 139 illustrates a breach of duty of care in a workplace bullying matter. The Qld Court of Appeal found that an aged care facility had breached its non-delegable duty by failing to take steps to minimise the risk of a former employee developing a psychiatric illness due to managerial pressure.

A former employee of the nursing home claimed that she developed depression and anxiety as a result of her excessive workload and the conduct of her manager. She claimed that, from 2009 when the particular manager joined the facility, she was subject to offensive, intimidating and humiliating behaviour causing her to become withdrawn, preoccupied, worried and noticeably depressed within the workplace.

The former employee claimed damages for loss of earnings as a result of her inability to work due to her psychiatric illness.

Being overworked, of itself, would not have been sufficient to establish breach. However, the manager’s constant belittling, yelling, aggression and general disregard for the former employee, coupled with the excessive workload, was sufficient to amount to breach.

There was evidence to suggest that the manager (and therefore the facility) should have foreseen the former employee’s particular vulnerability and her risk of developing a psychiatric disorder. Awarded over $430,000.00 in damages

 

Lessons for employers:

  1. Ensure that your managers are aware of their duty of care to employees and understand the difference between management and bullying.
  2. Don’t ignore complaints or reasonably foreseeable situations
  3. Investigate complaints of this nature thoroughly and in a timely manner.
  4. If in doubt call an expert

 

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 a suitability qualified and experienced workplace investigator.

 

 

Some good reasons to ensure you investigate thoroughly

An examples of where a lack of investigation case was costly, this is why you should investigate thoroughly

When a complaint is made employers should investigate thoroughly in a professional and timely manner to ensure that they satisfy their duty of care especially when considering the termination of an employee.

The case of Harley v Aristocrat Technologies Australia Pty Ltd [2010] FWA 62 illustrates an example of an unfair dismissal and the consequences of a lack of a proper investigation

The applicant Mr Harley was employed as a Business Development Executive at Aristocrat Technologies Pty Ltd (Aristocrat).

He had resigned after receiving a show cause letter from Aristocrat who claimed that he was under performing on sales targets and that there had been complaints about him from customers.

The applicant brought an unfair dismissal claim, claiming that he had been forced to resign as a result of a course of bullying and harassment engaged in by Aristocrat’s State Manager.

Commissioner Deegan agreed that the applicant had been constructively dismissed and that the dismissal was unfair.

He found that he had performed as well, or better, than most of the other business development executives during a difficult financial period and that he had been treated badly by the State Manager.

Significantly, he was highly critical of Aristocrat for failing to respond to the applicant’s harassment claims made against the State manager prior to his dismissal. He found that the human resources manager was “either uninterested in investigating the complaints properly or had no idea how to conduct such an investigation”.

 

The applicant was awarded 6 months’ salary in lieu of reinstatement.

This case is a strong reminder to HR professionals and managers to deal with employee complaints seriously and to conduct thorough investigations into complaints.

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 a suitability qualified and experienced workplace investigator.