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The Latest from the Blog

Handle with Care: Making Allegations of Serious Misconduct

Harriet Stacey - Tuesday, August 16, 2016


We understand that when business owners have a strong hunch regarding an employee’s dubious behaviour, their instinct can be to act in a fast and decisive manner. Often angered and sometimes caught off guard by what appears to be serious misconduct, employers can be tempted to deal with a worker’s blatant misconduct at once – including via summary dismissal.

However in the recent matter of Platypus Shoes, Commissioner Iain Cambridge of the Fair Work Commission (FWC) demonstrated that a lack of fairness during an investigation into allegations of serious misconduct can irreparably affect the quality and acceptability of the outcome.

The commissioner found that the employer in this matter had misrepresented the nature of the employee’s behaviour, and had tainted possible future actions due to the manner of the investigation.

Facts of the case

The applicant, Mr Jimenez, worked for the respondent as a shoe store manager. In October 2015, the applicant was summarily dismissed from his role with Platypus Shoes, on the basis of allegations that he had committed theft and fraud. Colleagues reported that Mr Jimenez had engaged in inappropriate behaviour such as wearing shoes that were on layby, not accounting for some $200 until after a week had passed (later described by the FWC as a retail ‘mortal sin’), taking four pairs of shoes from the shop, and providing a friend with the 20% family discount.

In response, the employer invited the applicant to a meeting on September 21, 2015, on the basis of wanting to discuss positive and favourable issues. Mr Jimenez attended the meeting alone and was promptly met with the allegations of theft and fraud. He was given the information in writing and told to respond within one day. After the applicant received legal advice, this period was extended. A further meeting was then called for October 9, 2015. After some discussion, Mr Jimenez was summarily dismissed from his employment in writing during a break in proceedings.

The right to be heard

On hearing from the parties, the commissioner pointed to certain fatal deficiencies in the manner in which the employer had acted against the applicant. Primarily, the employer appeared to have formed a clear opinion as to the nature and extent of Mr Jimenez’s alleged serious misconduct well before any opportunity was provided for the worker to properly receive and respond to the allegations.

And in calling the worker to the September 21 meeting alone and on the pretext of a positive discussion: “…[the employer] took steps to deliberately deceive him about the purpose of the meeting”.

It was noted by the commissioner that where allegations are particularly serious, decision-makers must ensure that the investigative process and resultant findings are of sufficient quality to meet the exacting standard set out in Briginshaw v Briginshaw (1938) 60 CLR 336.

Evidence of a closed mind

The letter that the employer handed to the worker during a recess in the meeting of October 9 also demonstrated a high degree of pre-determination, for example with certain names being evidently inserted some time earlier.

Commissioner Cambridge noted that decision-makers must operate: “…with an open mind such that the opportunity represented some practical and realistic potential to persuade the decision-maker to a particular view.”

Of interest was the finding of the FWC that the employer might well have been able to establish a case of serious misconduct in relation to the seemingly misappropriated monies. Such behaviour indeed appeared to constitute a ‘mortal sin’ in the world of retail cash-handling. However, the unfortunate manner in which the allegations were pursued by the employer effectively tainted the evidence and precluded an otherwise reasonable course of action.

Before finding in favour of the worker and provided a small quantum of compensation, the commissioner made the sobering observation that:

“The procedural errors made by the employer have rendered what would have otherwise been an entirely fair dismissal with notice, to be an unreasonable and unjust summary dismissal.”

Getting it right – every step of the way

It can be a fine line indeed between decisive action in the workplace against misconduct allegations and ensuring that the procedure is fair. Our years in working with businesses to ensure the best investigation possible have shown us many of the challenges that employers face in situations like Platypus Shoes. To avoid getting to mediation or court with a ‘tainted’ investigation, it is important that businesses understand the contours and potential pitfalls of a serious misconduct investigation.

Conducting proper workplace investigations would have made the outcome of this case a different story. If you handle allegations of serious misconduct or other workplace elements that require a proper investigation process then this course may be of interest to you. You will find more information regarding Conducting Workplace Investigations here


A Perplexing Problem: Protecting Children Overseas

Harriet Stacey - Wednesday, August 10, 2016


Every year billions of Australian dollars are provided to fund aid projects overseas. The money is targeted to assist developing countries with education, housing, health and community projects. Naturally children are a prime target group for these aid programs.  The majority of these organisations are funded by the Australian public via donations and government funding provided to not-for-profit organisations, many of them faith based organisations.

International rules and expectations govern the protocols for handling and responding to allegations related to child protection, however, enforcing these laws is a tricky business often involving multiple jurisdictions and multiple agencies who may disagree around responsibilities and liabilities.

Policies and procedures are not enough to protect children who are by definition amongst the most vulnerable in the world.

Small operations, voluntary management and high dependency on the goodwill of front end service delivery mitigate against strong child protection regimes. Poor oversight due to long distance, remoteness and cultural differences are also key features of this problem.

Funding bodies in Australia are expected to have high quality child protection systems and policies in place to gain government funding but the challenge of enforcing or even providing adequate training in the expectations to the end providers of the service can be beyond reach. 

Now that we know that we cannot unquestioningly depend on the nature of goodly people to act without harming children, what cost do we place on the need to provide secure safe environments for children receiving charitable services?

Documents provided today by the Guardian relating to the level of abuse within detention centres on Nauru demonstrate the abject failure of outsourced government funded programs. How then do we expect small voluntary projects to be faring against these standards?

It is clear that policies and procedures are woefully inadequate yet how much of the donated money do we want spent on compliance when it comes to protecting children? 

WISE Workplace is regularly requested to undertake investigations of allegations made against staff overseas who are working or administering charitable projects. The work requires a high level understanding of the environment, the agency, funding requirements, boards and community management structures, and the local culture and cultural background of staff and service recipients.   The work remains some of the most challenging to investigate.  Weak employment relationships can lead to inconclusive outcomes and an inability to enforce any restrictions on volunteers in the field.

For those organisations with managers in Australia trying to manage complaints or allegations arising from activities overseas, using the support of experienced investigators can be a godsend melding the investigative skills of experienced child protection investigators with the cultural and service delivery expertise of the coordinators working for the agency.

Our top 10 list of must do’s if you are a coordinator of a charity funded project overseas:

  1. Nominate a single contact person with responsibility for dealing with complaints related to child protection within your agency
  2. Have clearly articulated Child Protection Standards and Guidelines
  3. Have clearly articulated procedures for dealing with complaints
  4. Understand the criminal law in the country of service delivery
  5. Understand the employee relationship between the funding body and the service providers on the ground
  6. Know your legal obligations under your primary funding agency agreement
  7. Respond quickly to complaints
  8. Conduct a risk assessment and take protective action if necessary
  9. Identify a suitable contact person on the ground in the foreign country to be a liaison pain
  10. Seek specialist help when complaints are serious or complex to investigate.

WISE Workplace runs regular training programs on the principles of undertaking workplace investigations. Our facilitators have extensive experience and expertise in managing all kinds of challenging investigations including running operations overseas via Skype using local contacts.  Visit our website for more details on when our next programs are running. www.wiseworkplace.com.au/training

Failure to Investigate Workplace Incidents - What can go wrong

Harriet Stacey - Wednesday, August 03, 2016

In Australia, employers are legally obliged to provide a safe workplace for its workers so it is important to be aware of the impact of failing to investigate workplace incidents properly.

Under our common law provisions, employers may be liable for negligence if they do not take the proper steps to investigate an event in the workplace. While employers may initially think it is expensive, time-consuming and demanding of their resources to look into a workplace matter, the implications of not doing anything may be far greater.

It is important as an investigator to be aware of the various laws that cover workers and these include: unfair dismissal and unlawful termination under the Fair Work Act; the anti-discrimination and sexual harassment laws; workers’ compensation laws. The investigator must be clear that employers are also subject to legal obligations to provide a safe workplace.

A common mistake in a workplace investigation is failing to secure sufficient evidence or conducting a thorough investigation. The impact of this is often only felt in court when unfair dismissal claims cannot be defended.

Another common mistake in a workplace investigations is confirmation bias, where the investigator or manager secures only evidence that inculpates the accused or interprets evidence with a preconceived idea over culpability.  As a consequence, various legal bodies could find that the dismissal or disciplinary measures taken were unjust and legal remedies may be recommended. This could include penalties under the Fair Work Act which would examine what actions, if any, the employer took in regard to the original complaint.

Incidents, particularly those resulting in psychological injury are often overlooked and an employer who fails in its duty to its employees to take reasonable care to avoid exposing them to unnecessary risk of injury, including psychological injury can be held liable under negligence or safe work legislation.

Investigators need to be aware that employers creating or ignoring an unsafe working environment are liable for any harm endured by its employees. The employer can also be found vicariously liable for the actions of an employee which is known in the courts as the “reasonable steps” defence.

By taking action and following the principles of procedural fairness investigations can be a great learning tool for organisations, done well they can repair reputations and build stronger teams. Done poorly they can destroy fragile relationships. High quality training is essential for successful outcomes. Some of the things we cover in our courses for HR managers and Investigators is that many cases have already gone before the relevant courts, tribunals and administrative bodies and have found that the employer was liable because they:

  • Did not investigate the complaint;
  • Did not take the complaint seriously and investigate it;
  • The processes taken following the investigation were seriously flawed;
  • The investigation was unprofessional and incompetent;
  • The investigator was found to be biased. 

To find out more about our workplace investigation courses and how it could benefit you,  click here for more information.

 


Harriet Stacey 

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