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Workplace Misconduct – Things to consider when terminating an employee

Recently an employee who was terminated for workplace misconduct as as result of drinking too much alcohol on Anzac Day and was awarded $8229.00 after the Fair Work Commission found that her dismissal was valid but none the less harsh under the circumstances.

Avril Chapman was employed by the Tassal Group. Her job  involved scaling, slicing, weighing and packing fish.  She had  been employed since 1 August 2012 and was terminated for workplace misconduct on 1 May 2017.

On 25 April 2017, Chapman telephoned Tassal at 4.56 p.m. and left the following message:

“Hi Michelle, its Avril one of your most loved pains in the arse. Um its ANZAC day, my birthday, and I admit I have over indulged so I’m taking into account one of the golden rules be fit for work and I’m not going to be fit for work so I won’t be there. But um love ya, catch ya on the flip side.”

The next morning the message was heard by a Tassal senior manager, Duane Baker, who was concerned that Ms Chapman was using a golden safety rule to excuse or justify her behaviour in consuming alcohol to an extent that she anticipated she would be unable to work the next day. Mr Baker felt that the behaviour was likely to amount to misconduct in that Ms Chapman had breached the Tassel’s Code of Conduct by not being responsible for her actions and accountable for its consequences.

Tassel provided a letter was given to Ms Chapman in relation to the workplace misconduct when she arrived at work on 27 April 2017. It read, “You had deliberately made a decision to consume alcohol to the extent that you would not be fit for work on 26 April 2017 when you were required to attend and be in a fit state to carry out your duties safely.”

Ms Chapman responded to the allegation of workplace misconduct by email on 27 April at 7.06 a.m.
“Firstly, I did not deliberately make the decision to consume alcohol to the point were (sic) I would be unfit to attend work the following day,” read the email.

“It was by BIRTHDAY, and friends dropped by unannounced. I had my official birthday party on the Monday night and wasn’t expecting visitors on Tuesday, however, visitors I got.

“As the afternoon went on I realised it was going to be a long night and I believe I acted responsibly and respectfully by contacting management to let them know I wouldn’t be fit for work.

“Would it have been wiser for mw (sic) to call at 6 am on the 26th and plead illness? I think if I had done that then I wouldn’t be writing this letter now, but it wouldn’t have been the honest thing to do in my opinion.

“It was not my intention to deliberately take the day off, the events were not planned and not expected, and again, I feel that contacting management on the 25th was the right and responsible thing to do.”

FWC Deputy President Barclay found the company had a valid reason for terminating Ms Chapman. DP Barclay found, “It makes no sense to me that a person at 4.46pm, some 13 hours before having to work, and before being involved in any activities which might result in impairment for work would decide to predict that she will be unfit to work the next day,’’ 

“Here the Applicant “took a sicky” in circumstances where she had voluntarily embarked upon a course of conduct that resulted in incapacity for work, the situation is perhaps made worse by the Applicant’s acknowledgement that she could have gone to bed early and been fit for work the next day.”

DP Barclay added that the case is not dissimilar to the situation of an employee “taking a sicky” without being ill. DP Barclay held that because this is the first time that Chapman has conducted herself in that manner in five years of working for Tassal her termination of employment was harsh under the circumstances, he stated “I agree with the Applicant that another sanction such as performance management or a further, perhaps even final, warning was appropriate,”

DP Barclay found that Ms Chapman’s lack of awareness, acceptance and commitment to meeting Tassal’s expectations demonstrates that the trust and confidence required for an employment relationship had been “destroyed”

Even though it was found reinstatement was not suitable, Ms Chapman was awarded $8,229 in compensation.

Workplace Misconduct – Lessons for employers

* Employers should consider all options before moving to termination of an employee
* Employers should consider things such as the length of a persons service and their previous employment record especially if unblemished
* If you are unsure about misconduct, call an expert and save yourself the headache.

Link to case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4630.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/

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.

What the FWC said about outsourcing investigations in the workplace

The recent case at the Fair Work Commission of, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson [2016] FWC 5592 has highlight the need for employers to consider engaging independent third parties and consider outsourcing investigations in the workplace to maintain a level of impartiality and transparency.
https://www.fwc.gov.au/documents/decisionssigned/html/2016fwc5592.htm

Workplace investigations especially in the case of bullying, harassment and sexual harassment complaints are complex and in many cases involve both legal and cultural issues and risk.

Behaviour that is characterised as “bullying” or “harassment” can lead to claims under the Sex Discrimination Act (Cth) and the Work Health and Safety Act (Cth), and in addition bullying complaints can lead to the FWC issuing an anti-bullying orders under section 789FF of the Fair Work Act https://www.fwc.gov.au/disputes-at-work/anti-bullying

One of the challenges facing employers when dealing with workplace complaints is should the matter be investigated internally or externally by an independent, objective third party.

The Fair Work Commission in, Xiaoli Cao v Metro Assist Inc; Rita Wilkinson held that appointing an objective third party to investigate complaints might be a prudent step to adopt where an employee “vigorously asserts” that an internal investigation would be compromised by bias or a lack of transparency.

 

The bullying complaint

Ms Cao, an employee of Metro Assist Inc, claimed she had been bullied at work by her manager.

She lodged a formal grievance with Metro’s CEO, alleging that her manager had acted in an aggressive and belittling manner towards her, and had exhibited other unruly behaviour including repeated and persistent undue criticism, demeaning sarcasm and exhibiting “mistrust resulting in [the employee] having a low self-esteem”. This was later followed by further claims of bullying.

 

Two investigations into Ms Cao’s complaints

Metro conducted two separate investigations into Ms Cao’s complaints. Both investigations were handled internally by Metro’s CEO and Human Resources team, and involved a number of interviews. During the course of the investigations, Ms Cao was afforded opportunities to ventilate her complaints and put her position.

The internal investigations concluded that Ms Cao’s allegations were unfounded. Metro subsequently engaged external meditation sessions with Ms Cao, following which (after submitting medical advice) her reporting arrangements were changed and she was offered sessions with an independent psychologist (to be paid for by Metro).

Ms Cao was dissatisfied with the outcome of Metro’s investigations, and subsequently lodged an application with the Fair Work Commission seeking an order to stop bullying under section 789FC of the Fair Work Act.

When to consider outsourcing investigations?

Deputy President Sams concluded that the Manager had taken reasonable management action in her treatment of the Employee, and that no bullying conduct had occurred. Rather, it was concluded that Ms Cao’s:

“dogged, single-minded belief in the righteousness of her cause of action, no matter what the result of any investigation of her complaints, particularly those conducted by the employer, was [the reason why] she was not prepared to accept any outcome, unless it unequivocally vindicated her complaints”.

Deputy President Sams recommended that:

“where an employee vigorously asserts that an internal investigation into bullying allegations will lack transparency or independence, it may be prudent for the employer to engage an independent third party to conduct the investigation”.

Conducting the investigations – internally or bring in external expert?

The decision of whether an investigation is conducted on an internal or external basis must be made against the consideration of an employer’s obligation to ensure that investigations are conducted in an objective, fair, timely and thorough manner.

While there are advantages to conducting an investigation internally, this needs to be balanced against the risk of an employee believing that the investigation process is unfair or biased. In any workplace factors such as personal and professional relationships between staff members, internal political considerations, power imbalances and issues of competence and resourcing may have an effect on an investigation.

Engaging an independent third party to carry out an investigation can assist employers in balancing the interests of all parties to ensure the investigation is not only conducted appropriately, but perceived to be as such. It’s an application of the well-known saying

“not only must justice be done, it must be seen to be done”.

Key points for employers contemplating an investigation

When an investigation is being contemplated, these are some questions to be considered in regard to outsourcing investigations:

If the matter is investigated internally;

  • Can we ensure;
  • Transparency
  • Independence
  • An absence of bias
  • An absence of any conflict of interest
  • Will the parties involved object to having the matter investigated internally

Do we have a person within the organisation who has;

  • Solid experience and expertise conducting investigations?
  • Extensive experience conducting investigative interviews?
  • A full understanding of the rules of evidence?
  • An understanding of procedural fairness?
  • A comprehensive understanding of current legislation as it relates to workplace issues.
  • Experience making finding and recommendations and writing reports that will withstand the scrutiny of an industrial commission, the Fair Work Commission or a court?
  • The time and resources to conduct a thorough investigation

If in doubt I recommend that you call and 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 suitability qualified and experienced workplace investigator.

 

Duty of care – Sexual harassment – 1.3 million reasons to get it right

Everyone in a workplace has a duty of care to ensure that they do all that is reasonable practicable to ensure the safety of all others in the work place, including reacting to complaints of sexual harassment.

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.

Business owners, employers and managers must ensure that they do all that they can to ensure that the duty of care is not breached as it can have serious consequences for employees and expensive consequences for employers.

Courts have found that workplace bullying, harassment and sexual harassment can lead to the development of psychological injuries such as anxiety, stress, depression, PTSD and in the worse cases lead to suicide.

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.

Ms Kate Mathews was employed by Winslow Constructors, a large construction company specialising in civil engineering projects, as a labourer for two years. During her employment, Ms Mathews was subjected to repeated abuse, bullying and sexual harassment from Winslow employees and subcontractors.

Ms Mathews provided evidence that she endured daily sexual harassment, which included being shown pornographic material and being asked if she would do what she was being shown, being called a “spastic”, “bimbo” and “useless”, being repeatedly questioned over her sex life and having a colleague grab her hips and act out a sexual act on her.

Ms Mathews was unable to complain to her foreman as he was responsible for some of the offensive comments himself.

In July 2010 a colleague of Ms Mathews stated to her that he was “going to follow you home, rip your clothes off and rape you.” Following this comment, Ms Mathews was frightened and scared. She telephoned a person who she thought was responsible for Human Resources, with their comment being “come to my place… and we will have a drink and talk about it.”

Judge Forrest found that as a direct consequence of the bullying, abuse and harassment Ms Matthews was subjected to by employees and subcontractors of Winslow Constructors, she had suffered chronic and significant psychiatric injuries that have and will continue to diminish the quality of her life.

Judge Forrest awarded Ms Matthews $380,000 in general damages to compensate her for her psychiatric injuries and jaw injury, $283,942 for economic loss she suffered between 2010 and 2016 and $696,085 for her future loss of earning capacity until she reached retirement age of 65. The total damages awarded was $1,360,027.

 

Lessons for employers:

1.  Don’t ignore it

2. Don’t make it worse

3. Investigate thoroughly, it would have cost a lot less that 1.3 million.

4.   Ensure that your managers and HR professional are trained to deal with complaints.

5.   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.

 

Why do managers get complaints and what can be done to minimise the risk?

What is Reasonable Management Action, why do managers get complaints, as a manager or employer you can run the risk of having complaints made against you by virtue of your position and the decisions you make involving employees on a daily basis. As a HR professional you may have to deal with these complaints

The quarterly reports (2015 – 2016) for anti-bullying order applications made at the Fair Work Commission showed the following based on information provided by the applicant in the application;

Applications based on complaints of unreasonable behaviour by a manager or group of managers often as a result of Reasonable Management Action

January to March 2016 – 65% of total applications
October to December 2015 – 65% of total applications
July to September 2015 – 75% of total applications
April to June 2015 – 72% of total applications

Full details of the reports are here – https://www.fwc.gov.au/about-us/reports-publications/quarterly-reports

 

Why is this so?

In my experience having investigated 100s of workplace complaints I have found that complaints against managers usually fall into three categories

  1. What the manager did
  2. How the manager did it
  3. What the manager didn’t do

 

Sounds very broad let me narrow it down.

 

  • What the manager did.

Managers make decisions and take actions that affect employees on a daily basis. Often decisions and actions the most common of which is providing feedback that is not positive and/or conducting performance management result in complaints of bullying or harassment.

 

The Fair Work Act s789FD (2) tell us;

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

This exclusion is comprised of three elements:

  • The behaviour must be management action
  • It must be reasonable for the management action to be taken, and
  • The management action must be carried out in a manner that is reasonable.

 

The challenge for managers is to ensure that their actions fulfill the three point criteria.

Be warned – If bullying and/or harassment is occurring you cannot call it a management action.

Assuming that bullying has not occurred and the complaint has resulted following some form of performance management when I investigate these types of matters I look at,

  • Is the action able to be justified?
  • Was the action warranted?
  • What was the reason or cause for the action to be taken in the first place?
  • Was the action carried out in a fair and reasonable manner?

 

I recommend that all managers, employers and HR professionals have a sound understanding of what is and what is not reasonable management action and how to implement management action in a reasonable manner.

  1. How the manager did it.

In many cases managers fulfil the what part of the criteria but fall down on the how.

Many managers do not like providing adverse feedback and/or conducting performance management meetings and as result it is conducted poorly and in many cases leads to a complaint.

Having a sound understanding of how to conduct performance management meetings and the associated process is essential.  Being aware of the concepts of procedural fairness and unfair dismissal is equally as essential and can save a lot of money in the long run.

      3. What the manager didn’t do.

Managers are often the first port of call for someone making a complaint; in addition they may be the person that becomes aware of employee misconduct.

It is important that managers deal with misconduct and/or receive the complaints in a proper manner and take some sort of action.

It is also important that managers deal with misconduct and/or handle complaints in a proper, timely and professional manner as the outcome may result in the termination of an employee.

When the termination of an employee is a possibility it is essential that correct procedure is followed, failing to do so can lead to the potentially costly legal action by that employee.

It must be noted that taking no action when a problem is apparent or a complaint is made can also lead to potentially high cost legal action involving claims of negligence and a breach of the duty of care to the employee/s involved.

Reasonable Management Action – What can you do?

To address these issues I have developed a training program for managers, employers and HR professionals called “Management Essentials”  http://awpti.com.au/backup/training/

It is a full day program that consists of;

  • Understanding reasonable management action
  • Performance management to avoid complaints.
  • Dealing with misconduct and complaint handling

Having effective training in place in these critical areas is essential and a means of ensuring you have taken all reasonable steps to satisfy your duty of care to both managers and employees.

If you are a manager who wants to understand these concepts and minimise to the risk of having complaints made against you or if you are a HR professional that wants to train your managers and also minimise to the risk of complaints against your organisation please contact me for more details or check out our workplace training page.

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.

Misconduct – getting the whole story part 3

Misconduct – getting the whole story part 3. Following on from part 1 and part 2, in this case you have received a complaint of sexual harassment, bullying, discrimination or other misconduct from a victim in writing or via email – what should you do?

Written complaints are often filled with emotion and generalisations. The job of an experienced investigator and interviewer is to get to the heart of the issues, to find out what has been going on and find out exactly what the complaint is about.

It is not uncommon for written complaints to have been written over a period of time and to be lengthy.

It is important during the interview to find out what the victim meant when they used words like bullying, intimidated, humiliated, harassment, threatened etc. I have read complaints that used words like blackmailed and extorted. When I interview the complainant the behaviour alleged was not actually consistent with those words. I have also reviewed complaints from respondents who identified that the words used in an allegation framed only using the written complaint did not match the behaviour actually alleged. This trap should be avoided as it has the potential to derail the investigation.

It is very important that any allegation put to a respondent matches the behaviour alleged in a complaint. For example if a victim said that the perpetrator yelled and threatened them in front of other employees when they said “I am sick of having to tell you over and over how to do this, you’re useless, just get it right will you.”

This may be classed as humiliating or belittling, however it is not threatening even if the victim claimed that is was threatened. The job of the investigator/interviewer is to get full details and to be able to determine the nature of the complaint.

The conversation could go like this

Interviewer – “You said in your email that he threatened you, can you tell me about that?”

Victim- “ Yes he said, I am sick of having to tell you over and over how to do this, you’re useless, just get it right will you.”

Interviewer – “Did he say anything else?”

Victim – “No that’s all.”

This may be  a case of humiliating or belittling behaviour, however it is not threatening. If the complainant was not interviewed you may be proceeding to make allegations against the respondent based on the complainant’s understanding of what certain terms such as bullying actually mean.

When interviewing the complainant:

Obtain details and record;

  • What happened – in as much detail as possible (events?)
  • Who was the perpetrator – name, role/position?
  • What were said – exact words if possible?
  • When it happened – in as much detail as possible, time, date, day etc
  • How the perpetrator behaved
  • What they meant by word like bullying, intimidated, humiliated etc
  • How the victim responded
  • Was anyone else there – additional witnesses, who?
  • What they did – did they have any conversation with the perpetrator or witnesses?
  • Explain the need for confidentiality

Review the information from person/s reporting to see what other information you need to fill in the gaps and who else other than the alleged victim you made need to interview.

Interview witnesses – be careful not to give the witnesses too much information or lead evidence form them but you need to clearly establish;

  • Who was the victim?
  • Who was the perpetrator – name, role/position?
  • What they saw
  • What they heard – exact words if possible
  • When it happened – in as much detail as possible, time, date, day etc
  • Was anyone else there – additional witnesses, who?
  • What they did – did they have any conversation with the victim, perpetrator or witnesses
  • Explain the need for confidentiality

By now you should be in full possession of the facts from the position of the victim and witnesses.

As I previously mentioned this is a time consuming and often difficult process. It is wise that prior to starting you decide, do we have the time, do we have the expertise and experience or would be it be better from a time and cost saving perspective to have a professional come in and take the stress away?

Part 4 of this post will examine the next steps and what you should do before interviewing the respondent to ensure procedural fairness.

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 should seek advice from suitability qualified and experienced qualified workplace investigator.

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/

How much does workplace bullying cost your business?

A recent article in the Canberra times estimated that the annual bill to taxpayers for bullying, harassment and “occupational violence” in the public service is now approaching $80 million.

How much does the same sort of behaviour cost your organisation, taking into account sick days, loss of productivity and the potential for mentally stressed workers to submit compensation claims?

It is unlikely that you will be able to eradicate all forms of bullying behaviours, however there are things you can do to reduce the potential cost to your business:

  • Be clear about the behavioural expectations in your workplace/business. This can be achieved by having a clearly worded Code of Conduct and behavioural (bullying, harassment, sexual harassment, and discrimination) policies in place.
  • Ensure that all employees receive training in regard to the behavioural expectations in your workplace/business.

Many businesses conduct behavioural expectation training during or part of the employee induction process or they use online resources.  I consider both of these to be inadequate.

During induction new employees are bombarded with information and behavioural messages can get lost. Online training provides no opportunity to ask questions and really engage. It is too easy to skip on, multi-task (doing emails, taking phone calls etc while doing the online training)  and fail to understand the expectations. I recommend the following:

  • Conduct face to face training utilizing experts in the field.
  • Have a trusted reporting mechanism in place. Employees must know that there is somewhere safe to report incidents of misconduct and that action will be taken.
  • Have a reactive and effective investigation process for complaints of misconduct and a grievance resolution mechanism in place for interpersonal disputes.
  • Have proactive strategies in place to ensure that HR, senior managers and line managers are seeing what is going on around them and being aware of misconduct and are able to effectively manage poor behaviour and complaints.

These strategies are not a 100% guarantee that poor behaviour will not occur or complaints will not be made. They can however reduce the incidence of them and will allow you to claim that you have acted in a reasonable manner in the way you addressed workplace behavioural issues should the matter end up in a court, commission or tribunal.

Some upfront investment could save you a lot of time, stress and expense in the long run.

Read more: http://www.canberratimes.com.au/national/public-service/revealed-the-cost-of-bullying-and-violence-in-the-australian-public-service-20150729-gimwfr.html#ixzz3hioV2euF

This is general information only. It is recommended that should require advice you should seek advice from a suitability qualified workplace investigator. You can contact us at enquiries@awpti.com.au

 

 

Lawless v Qantas Airways Limited [2015] FWC 6456 24 September 2015

Termination of employment – incapacity – inherent requirements – s.394 Fair Work Act 2009 – application for unfair dismissal remedy.

The applicant Lawless was dismissed on medical grounds. The applicant contended that following a workplace injury, the respondent failed to provide suitable employment consistent with its obligations under the Workers Rehabilitation and Compensation Act 1986 (SA) (the WRC Act), and there was no valid reason for dismissal.

The respondent Qantas Airways Limited contended that the applicant was supported with suitable duties for 12 years under a return to work plan and that the applicant didn’t fulfil the inherent requirements of his substantive position or any other position and it was not reasonably practicable to continue his employment.

The Commission held that because the applicant was unable to fulfil the inherent requirements of his position and because the respondent provided suitable employment to the applicant over 12 years, there was a valid reason for dismissal however it found applicant denied procedural fairness.

The commission was satisfied reinstatement not appropriate. The calculation of compensation stayed until other dispute proceedings finalised.

Lesson for employers – This could be costly and reinforces the need to employers to be aware of and abide by the rules of procedural fairness, failure to do so can turn a win into a costly loss. For more details about procedural fairness – https://www.linkedin.com/pulse/procedural-fairness-get-right-risk-being-cannon-fodder-phil-o-brien?trk=mp-author-card

A professional investigation into the issues may be ensured that the respondent was afforded procedural fairness and then there would be no – ‘however.’

Cheung v Prime Enterprise Holdings P/L t/a Sushi Master [2015] FWC 6568 23 September 2015

Termination of employment – valid reason – s.394 Fair Work Act 2009 – application for unfair dismissal remedy.

The applicant Cheung was employed on part-time basis and had been late for work on four occasions. The respondent Prime Enterprise Holdings warned employees that if they were late for work their shifts would be reduced.

The applicant was again late for work and as a result was removed from her usual roster as punishment for being late. Ms Cheung objected and was subsequently dismissed.

The Commission was not satisfied there was a valid reason for termination and found that the actions of respondent to be disproportionate to the conduct of the applicant.

The commission found that the termination of employment was harsh, unjust and unreasonable and thereby that the applicant had been dismissal unfairly

The commission was satisfied reinstatement not appropriate and ordered compensation in the amount of $7805.16.

Lesson for employers – The punishment must fit the crime.

Misconduct – getting the whole story part 2

Misconduct – getting the whole story part 2. Following on from part 1 – In this case you have received a complaint of sexual harassment, bullying, discrimination or other misconduct from a person other than the victim – what should you do?

Thoroughly interview the person providing the information. Record as much detail as possible.

1. Who was the victim?
2. Who was the perpetrator – name, role/position?
3. What they saw
4. What they heard – exact words if possible
5. When it happened – in as much detail as possible, time, date, day etc
6. Was anyone else there – additional witnesses, who?
7. What they did – did they have any conversation with the victim, perpetrator or witnesses?
8. Explain the need for confidentiality

Review the information from the person reporting to see what other information you need to fill in the gaps and who else other than the alleged victim you may need to interview

At this time you can choose to speak to witnesses. Be careful not to give the witnesses too much information or lead evidence from them.

After establishing that they were or may have been present at the time ask open questions like “last Monday do you recall anything unusual happening in the hallway on the fourth floor at around 11am?”

Repeat 1- 8 above for all witnesses

Speak with the alleged victim, advise the victim that you have a duty of care to investigate the matter.

Interview the victim to obtain and record full details of the incident/s, see above 1 – 8

By now you should be in full possession of the facts from the position of the victim and witnesses.

Of course this is a time consuming and often difficult process. It is wise that prior to starting you decide, do we have the time, do we have the expertise and experience or would be rather have a professional come in and take the stress away?

Part 3 of this post will examine what you should do if the complaint is made the victim in writing or via email.

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 should seek advice from suitability qualified and experienced qualified workplace investigator.

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/