Clifford Gouldson Lawyers

Have you got a moment?

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A recent reminder that an informal invitation to talk is not an appropriate way to instigate a disciplinary meeting with an employee was brought home in an unfair dismissal case[1], heard by the Fair Work Commission.

It is a reminder to employers, and HR practitioners specifically, that they need to be clear about the purpose of a disciplinary meeting and keep it formal. There is a procedure that an employer needs to follow when conducting a workplace investigation that could lead to disciplinary action and/or termination of employment.

In this case a HR Advisor and management executives asked an employee, without adequate notice, to attend a “discussion” or “conversation” about alleged misconduct. In reality the employer was summoning the employee to a disciplinary meeting but did not adequately make the employee aware of the nature of this meeting and the seriousness consequences that could result from the investigation into alleged employee misconduct. 

As a result of the investigation the employee was dismissed and she lodged a claim for unfair dismissal. The Fair Work Commissioner found in her favour and ordered that she be reinstated to her position and paid for lost wages. The employee, an Advertising Agency Coordinator, had almost 20 years of service with the employer and had previously been described as a diligent, highly efficient and respected employee. Due to a re-organisation of the business, some of her clients were to be taken off her and delegated to other sales people. The employee, upon hearing this news, deleted some “personal notes” from the computer system and the employer alleged that she did this with malicious intent to damage the business.

The Commissioner found that the employer “adopted the high to extreme end of consequences” which were beyond what a reasonable person would support. Therefore the Commissioner did not form the view that the employer had a valid reason for terminating the employee’s employment.

To be fair ...

The Fair Work Act requires the dismissal process to be fair.

The Commissioner found that the employee was not treated fairly and that there was no valid reason for her dismissal because the employer:

  • had already formed the view that she should be dismissed prior to her attending the meeting;
  • directed the employee to attend the meeting without any notice or knowledge of its purpose;
  • did not inform the employee of the serious nature of the meeting and referred to it more as a discussion rather than a disciplinary meeting;
  • did not allow an opportunity for the employee to have a support person present at the meeting;
  • did not give the employee an appropriate opportunity to respond because the particulars of the allegations were not put to her in a clear, fair and straightforward way;
  • allowed the disciplinary meeting (the discussion) to be conducted by an HR Advisor who was not familiar with the computer account management system from where the employee’s notes were deleted and therefore the HR Advisor’s questioning was confusing and lacked clarity which led the employer to believe that the employee was answering untruthfully and without candour;
  • wrote a dismissal letter to the employee which centered around a breach of the Employee Code of Conduct however this code of conduct was never stressed at training sessions as being  important to the workplace.

Lessons Learned - for employers

Don’t ambush your employees!

If you are conducting an investigation into alleged workplace misconduct then you must be able to show that you followed a fair procedure. If the investigation results in the termination of employment then you must have a valid reason for dismissing the employee which was not unreasonable and not disproportionate to the misconduct. Section 387 of the Fair Work Act 2009 outlines what must be taken into account when determining what is harsh, unjust or unreasonable.

This case highlights the importance of stepping through a fair process during workplace misconduct investigations. Specifically, HR Advisors who are tasked with conducting workplace investigations or disciplinary meetings should:

  • not try to trick or ‘catch out’ the employee or ‘set them up’ by engaging in actions that are deceptive, opaque and unfair;
  • forewarn the alleged wrongdoer about the purpose of a meeting and clearly explain the purpose of any investigative meeting including the seriousness and the type of allegations being investigated;
  • take time to fully understand the nature of the allegations to the extent that you can converse in the consequences of any breaches (in the case referred to, the HR Advisor had to discuss a computer system which she knew almost nothing about and had only 48 hours to become acquainted with);
  • clearly explain the allegations in a straightforward and logical manner;
  • avoid using vague statements or descriptions which don’t reflect the serious nature of the meeting (i.e.; lighthearted and informal invitations to meet such as: “have you got a moment” or “let’s have a little chat” or “can I have a word” etc do not reflect the seriousness of the proposed meeting);
  • provide sufficient notice of the nature and the time of the meeting to enable the employee to arrange for a support person to be present at the meeting, gather their thoughts to respond; and
  • enter into the investigation with an open mind and allow the employee a fair opportunity to respond to the allegations rather than having already predetermined the outcome of the investigation;
  • be fair and reasonable and let the ‘penalty match the crime’ as adopting the high to extreme end of consequences beyond what a reasonable person would support will unlikely  constitute a valid reason for dismissing an employee;
  • ensure that the importance of Workplace Policies and Codes of Conduct is reinforced to the employees and that the documents are readily available and referred to in the workplace.

[1] Mrs Sandra Ward v West Australian Newspaper Limited [2010] FWA 1785


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