Managing misconduct is rarely easy, and often reasonable minds will differ on the appropriate response to misbehaviour in the workplace.  However, when considering an allegation, or recommendation rising from an investigation, the decision-maker should ensure their decision making is fair and reasonable, and that their managers always act consistently with the principles of procedural fairness.

While one of the principles of procedural fairness is to ensure that matters are resolved in timely manner, this should not override broader rights to procedural fairness, including the right for subjects of an investigation to respond to allegations made against them. It may well be that the employee should be dismissed, but this should only happen after a fair investigation.

• Procedural fairness requires that any proposed disciplinary action should be put to the employee, a response obtained and consideration given to that response.
• The decision-maker has a responsibility to independently assess recommendations rising from an investigation before making a decision.

While a flawed investigation should not be the basis on which to dismiss, neither should it be the basis on which to excuse the employee from alleged serious wrongdoing or non-performance.  Focussing on individuals is simplistic and ineffective if the real causes of disharmony are the workplace’s culture, systems and/or work practices.  If there is an ongoing pattern of workplace discord, the employer may need to investigate the systemic root causes of the problems and develop solutions which will deliver better services and greater workplace harmony.

There is a recent case example where an employer was criticised after its CEO made a decision to terminate an employee, based on recommendations from a disciplinary meeting, without providing an opportunity for the employee to respond to all the allegations made against them - in the Nortec case ((U2016/7185)) NORTEC Employment & Training Limited (the employer), a not-for-profit organisation which provides Government funded employment and training services and staffing advice for small business, was ordered to compensate an employee after the Fair Work Commission ruled it had unfairly dismissed the employee by way of “an unreasonable and unjust process”.

At a Fair Work Commission hearing in Ballina, Commissioner Cambridge was critical of the employer and even suggested that NORTEC “may benefit from a review of its employee management practices”. Commissioner Cambridge said it was “surprising that a fundamental element of due process was apparently overlooked” in circumstances where Nortec had access to dedicated “employee relations management specialists”.

A second independent opinion or Savvy HR advice would be invaluable in such situations.

Summary

In summary, the Nortec employee was dismissed because of a combination of work performance and conduct issues which accumulated over the four year period of his employment.  More significant concerns with the employee’s workplace conduct were interspersed with various less notable conduct and performance issues. Essentially, an insignificant transgression involving the redirection of some duties to other employees without approval became the tipping point, and the dismissal which followed was based upon the culmination of conduct and performance concerns which had arisen throughout the duration of his employment.

The FWC found that the dismissal was for a valid reason involving established performance and conduct inadequacies. However, the Commissioner also found the dismissal was implemented by way of an unreasonable and unjust process. The Nortec employee was denied procedural fairness but the employer did have valid reason to dismiss him. Consequently, when these various factors have been carefully evaluated and balanced, the employee's dismissal was found to have been unreasonable.

Commissioner Cambridge decided that compensation would be an appropriate remedy for the employee’s unfair dismissal.

Background

The employee had worked for Nortec for four years as a Skills for Employment and Education (SEE) Teacher/Assessor. The employee’s work history included a number of incidents for which he was issued a series of warnings.

Nortec conducted a disciplinary meeting to provide the employee with an opportunity to respond to its concerns about his conduct regarding the reallocation of tasks and duties that were part of his role, to other employees without management approval.

After the disciplinary meeting, two of Nortec’s managers arranged to discuss the employee’s continued employment with Nortec’s CEO, Paul Bennett. Mr Bennett then took the decision to dismiss the employee.

In such circumstances, the failure by Nortec’s CEO to give the employee an opportunity to be heard, or offer a defence, or provide other potentially mitigating information, in respect to the array of performance and conduct issues, for which he was dismissed, meant that the employee was denied natural justice.

Section 387(g) of the Fair Work Act, contains criteria that the Commission must take into account in any determination of whether a dismissal is harsh, unjust or unreasonable. In addressing the criteria the Commissioner found that Nortec was a medium sized business with dedicated employee relations management specialists.

Consequently, the Commissioner found it was “surprising that a fundamental element of due process was apparently overlooked at the final stage immediately preceding the dismissal of the applicant”.

In particular, the Commissioner said, “any disciplinary procedures should mandate the opportunity for an employee to be provided with a ‘show cause’ meeting with the relevant decision-maker before the determination of any dismissal from employment”.

Commissioner Cambridge concluded that it was irrelevant whether the employee may have been able to provide a response which may have persuaded the CEO to decide on a course of action other than dismissal. “Importantly, the applicant was plainly denied an opportunity to advance any explanation, or offer any defence, or provide other factors which may have had some influence on Mr Bennett’s decision to dismiss”, said Commissioner Cambridge.

Best practice for workplace investigations and decision making?

Dealing with misconduct in the workplace can be complicated and a second opinion and Savvy HR advice can be invaluable.

For more information on this or any other workplace investigation and employment related matters, please contact Savvy HR.

Savvy HR provides independent workplace investigations - Ballina and Brisbane - to a high standard of procedural and substantive fairness, intellectual rigour and sensitivity.

We use our HR know-how and investigation experience to support clients to deal with informal complaints through to conducting formal site-based investigations. 

For workplace consulting, employment advice Ballina, Brisbane contact Savvy HR.

This publication is provided by way of general guidance only and is not to be construed by the reader as legal advice or as a recommendation to take a particular course of action in the conduct of their business or personal affairs. You should not rely upon the material as a basis for action that may expose you to a legal liability, injury, loss or damage and it is recommended that you obtain your own advice relevant to your particular circumstances.