Substantive, Not Superficial: A Call to Improved Procedural Fairness

Natasha Kennedy-Read and Vince Scopelliti - Tuesday, March 17, 2020

The FWC recently found SA CARE’s dismissal of a casual disability care worker to be unfair and ordered compensation.

The employee in question was warned off tube-feeding clients due to her lack of certification. In response, she advised that she had been signed off on two appropriate training courses, had experience providing gastronomic care at another facility and had been approved by Disability SA. She believed she had been approved to provide that care.

Two days later, the employee was called without warning into a disciplinary meeting with HR where her lack of certification and other qualifications were discussed again.

The HR officer stepped out of the disciplinary meeting for five minutes.

On return, the officer handed the employee a summary dismissal letter which recorded that the employee had received an opportunity to respond to a serious misconduct allegation. the letter terminated her employment with immediate effect.

FWC’s Deputy President Anderson stated the “shocked” care worker was then “escorted off the premises in the knowledge and view of clients and staff, causing them further distress.”

FWC Findings

Ordinarily, an employee performing a medical procedure on a client, knowing they lacked the required certification would justify summary dismissal. Anderson acknowledges the care worker’s assumptions can be reasonably criticised, but also found that the “unique circumstances of this matter” with factors that significantly “mitigate the seriousness of the conduct.”

Anderson found the lack of notice and the timing of only 48 hours between the instruction and the disciplinary procedure to be harsh and unfair. The process also had only superficial procedural fairness, since the employee’s ability to respond was limited and she was not fully warned of the risks to her employment or afforded the right to support during the process.  Anderson also found that the urgent treatment of the matter was unnecessary. 

Anderson awarded the care worker four weeks compensation minus 25% for misconduct with SA CARE paying over $5830.74 in compensation. If you would like to read more about this case, please see: Chioma Okoye v SACARE Supported Acomodation and Care Services T/A SACARE [2020] FWC 704 (12 February 2020).

what can we learn from this case? 

Matters involving dismissal must be handled with utmost sensitivity, caution and procedural fairness even in matters of perceived urgency. There is often grey area in matters of misconduct that may seem black and white. To ensure you are best informed and equipped to handle these challenging circumstances, WISE offer expert third party HR services including training, investigations and reviews.

How to Navigate Counter Allegations in Investigations

Natasha Kennedy-Read and Vince Scopelliti - Friday, February 14, 2020

It is not unusual when investigating allegations such as sexual harassment, bullying or theft for the person accused of the misconduct to make a counter allegation.

This in turn can generate further counter allegations, making it difficult for investigators to keep track of a growing litany of wrongdoings!

Steering through the sea of counter allegations means handling each complaint separately, being mindful of procedural fairness and adhering to the civil standard of proof. 

Divide ALLEGATIONS into separate incidents

It is important not to conflate cause and effect when it comes to counter allegations. If the allegation is that person A slapped person B, who, according to A, retaliated by stealing A’s smartphone, these two allegations must be investigated separately.

It may be that that person B had nothing to do with the smartphone’s disappearance, or the slap never happened. 

By looking at them as two unrelated incidents, investigators will not ‘miss’ important evidence, such as A accidentally leaving their phone in a meeting room.

keep procedural fairness top of mind 

The smartphone theft/disappearance may only come up when B is being investigated for the alleged slap. The alleged wrongdoer makes the counter claim in an interview that was up to that point unknown.

In effect, this means there are two allegations under investigation. Depending on the circumstances, this new information may require the interview to be suspended while further inquiries are made by the investigator. 

While it may be tempting to view the counter allegation as 'tit for tat' failing to investigate this new complaint could be viewed by a court or tribunal as a denial of procedural fairness by the employer.

Many unfair dismissal claims are successful because the employer in question failed to afford procedural fairness to the alleged wrongdoer.

The civil standard of proof

While investigating allegations and counter allegations, compartmentalising each alleged incident, its timings and events ensures impartiality and clarity.

This means taking care with unwitnessed and testimonial evidence (hearsay). Vivid descriptions of events may sometimes be compelling yet have no bearing on actual events. Finding an impartial witness to an event can short-circuit this problem, but it can be difficult. Just because person C saw B running from the bathroom crying does not mean the cause was a slap from A. 

Investigators should apply the civil standard of proof when assessing evidence. This means that for an allegation to be substantiated, the evidence must establish that it is more probable than not that the incident occurred.

The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: 

  • Relevance of the evidence to the allegations. 
  • Seriousness of the allegations.
  • Inherent probability of an event occurring.
  • Gravity of the consequences flowing from a finding.
  • The likelihood that the required standard of proof will be obtained.

Employers and management must at all times remain unbiased. Just because a counter allegation is made during an investigation does not mean it lacks substance. It may be that the counter allegation carries more weight and is of a more serious nature than the initial claim.

It can be challenging for investigators when presented with counter allegations. If you want to ensure that you are undertaking investigations effectively, WISE provides a range of skills-based short courses for investigators, as well as formal qualifications such as Certificate IV and Diploma in Government Investigations.



Workplace Bullying: Observations from Our Investigators

Vince Scopelliti - Wednesday, May 15, 2019

Like schoolyard bullying, workplace bullying is far from a new phenomenon. When people who may not have much in common outside work are thrust together on a daily basis, there are bound to be disputes, friction and potentially even outright hostility. 

Of course, any serious matters need to be dealt with by conducting a thorough workplace investigation. Recently, our investigators have noticed a number of trends in workplace bullying during the course of their work. 

We are seeing more bullying in the not-for-profit sector, a rise in false or malignant allegations of bullying, and increasing use of workers' compensation claims during the investigation process. 

increase in bullying allegations in the non-profit sector

There have perhaps been less instances of workplace bullying in the non-profit sector than in the more cutthroat 'for profit' world. However, investigators are noticing that these organisations seem to be experiencing an upturn in bullying allegations. 

This might be because many boards have recognised that, despite their non-profit nature, it is becoming increasingly difficult to remain a viable entity without a certain degree of commercial acumen. This often results in the hiring of personnel from more traditional commercial roles, which in turn flows through to a change of management style and a shake-up of the way things have always been done.

Existing staff may perceive these types of changes as 'bullying'. It is therefore important that any measures taken by the organisation, such as performance management or disciplinary proceedings can be demonstrated to be 'reasonable management action'. 

false allegations of bullying

False complaints of bullying also seem to be on the rise. A classic example here could be a situation where a team member has been advised by their manager that they are being informally performance managed and can shortly expect a formal process to commence. That team member may attempt to avoid the - appropriate - disciplinary action by claiming that they are being bullied by the manager. 

In other cases, the bullied may turn out to be the bully - making allegations as a defence against potential complaints.      

worker's compensation

Another trend observed by WISE investigators involves staff who are being investigated for their conduct claiming workers' compensation, perhaps for stress leave or mental health issues arising from workplace bullying or harassment. 

Although there are certainly instances of legitimate workers' compensation claims in these circumstances, it can also be a way for employees to maintain their income and ensure their continued employment while an investigation takes place. 

This is because, regardless of the outcome of any investigation into the employee's conduct and any determination made as a result, no disciplinary action can be taken until the lengthy workers' compensation process is complete. 

This can be frustrating for employers, who are hamstrung in their ability to follow through on reasonable and necessary management actions as a result of staff who may be attempting to circumvent the system and avoid termination.

WISE has been a national provider of workplace investigation services for over 29 years and has assisted countless organisations through the formal processes. Our highly skilled team has the experience to help organisations navigate the challenging issue of investigating workplace misconduct and internal grievances. We are experienced with dealing with all types of misconduct, including bullying and harassment claims, providing our clients a level of comfort that the process can be relied upon to ensure it is procedurally fair, and false allegations or delay tactics are identified quickly and the matter resolved.