Clifford Gouldson Lawyers

Communication crucial in disciplinary matters

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1/06/2018

Managing disciplinary matters with employees can be a tough process. Proper communication between employer and employee regarding misconduct is a crucial element in handling any disciplinary matter, as evidenced in a Fair Work Commission case involving an employee with English as her second language at an aged care facility.

In this case it was alleged that the aged care worker:

  1. laughed at the deaths of residents;
  2. ignored residents buzzers; and
  3. had been disrespectful to staff and residents.

Upon learning this information, the general manager of the aged care centre immediately escorted the employee from the premises and instructed her to return in a few hours for a meeting to discuss the allegations that were made against her.

The distraught employee, not knowing the reason for why she had been escorted from her workplace, drafted a resignation letter herself. She had assumed that the allegations involved a minor incident of a resident offering alcohol to her. To avoid any future embarrassment, the worker intended to resign from her position before her manager had the chance to dismiss her.

The employee then returned to the site and handed over her resignation letter, which was not accepted by the manager. Instead, the manager informed the employee that an investigation was to be conducted into a number of allegations against the employee.

Being from another country and not having English as her first language, the employee did not properly understand the situation and conveyed that she was adamant she did not want to participate in the investigation.

Despite the employee’s insistence, the general manager told the employee that, for the employee to be paid her four weeks’ notice as per her resignation letter, she would need to participate in the investigation. Otherwise, she could change the date of her resignation letter there and then to that current day and have her resignation effective immediately.

Determined not to participate in an investigation and not properly understanding what that would entail, the employee was forced into what’s known as a constructive dismissal, whereby the general manager pushed the employee into resigning that day.

The following day, the employee returned to work in an attempt to have the resignation rescinded - which the manager refused. The employee then filed an unfair dismissal application.

Commissioner Riordan found that this process was unprofessional, discourteous and unfair. The employee was given very minimal evidence of the allegations and never received a written outline of the allegations against her.

The Commissioner labelled the manager’s actions as a form of entrapment as the accusations were presented in a generalised and non-specific way. The Commission held that the decision to terminate an employee should never be based on a memory test, but rather the employee’s considered response to specific accusations. Given the facts, it was clear that the employee was not afforded the opportunity to present measured responses to the accusations presented against her and thus the dismissal was deemed harsh, unjust and unreasonable.

The Commission ordered to have the employee’s lost pay be restored and for the worker to be reinstated into her previous position.  

Implications for business

The important take away from this case is that the communication between a manager (or other person in a similar role) and an employee is paramount. Businesses should be clear with their employees when managing a disciplinary matter. Sufficient information about an opportunity to respond must always be supplied to an employee so that they may properly respond to any and all allegations made against them.

If you need help in how to manage the disciplinary process for your employees, please contact one of our workplace experts for advice.

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