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The Latest from the Blog

Unfair Dismissal: Should Criminal Law Principles Apply?

Harriet Stacey - Thursday, August 25, 2016


In the recent case of Colin Wright v AGL Loy Lang, the full bench of the Fair Work Commission (FWC) was faced with an interesting conundrum – could the criminal law Pfitzner principle be legitimately applied to a civil matter? With the original decision on the point being in the negative, the appeal bench had an interesting opportunity to explore the transferability of criminal law authority into the industrial law arena.

facts of the case

Wright, an employee of AGL Loy Lang, had found himself in rather a difficult position after finishing a shift at the AGL site and journeying toward home. Losing control of his vehicle, Wright tore through a roundabout then smashed into two fences before eventually coming to a stop. Police at the scene reported that the vehicle operator admitted to them that he had recently been “smoking synthetic cannabis.” During the course of the original unfair dismissal proceedings, it came to light that Mr Wright had already been disciplined at work for his use of synthetic cannabis. Further, he had received employee assistance from AGL in order to combat his substance-related issues.


Once the accident and surrounding information came to the attention of the employer, Mr Wright was dismissed. In making the decision to dismiss Mr Wright following the accident, the employer took into account his admission to police regarding his use of synthetic cannabis prior to the event.

The employee then proceeded to argue that, because AGL had utilised this alleged admission made to police, Wright’s dismissal from employment was unfair.

Specifically, he argued that the principle in Pfitzner applied, which precludes certain admissions from being used against an accused in later proceedings. This is a well-established principle in criminal law, and is strongly tied to the rights of the accused at and around the scene of an alleged crime. Such rights include the right to remain silent, as well having any remarks disregarded where the accused was incapable of making a sensible decision about speaking with police.

first instance and appeal

In the original hearing, Vice President Watson rejected the notion that Mr Wright could rely on the Pfitzner principle in order to have his statement at the accident site disregarded. He concluded that the common law protections set out in Pfitzner would not extend to the current matter, being a civil law case of unfair dismissal.

On appeal by Wright, the full bench of the FWC upheld the findings of Vice President Watson.

It was confirmed that the criminal law Pfitzner principle regarding the use of statements at the scene in later proceedings could not be appropriately applied to the present civil matter. That is, the employer AGL was well within its rights to utilise the statement made by Mr Wright, and to rely on it during unfair dismissal proceedings.

A rule of law issue

It is perhaps unsurprising that the rules of evidence differ between criminal and civil cases – and that protections embedded within one do not necessarily translate to the other. Yet the Wright matter could provide pause for thought when we consider the broader premises of the rule of law – the accused has inviolable rights at the scene, and legal principles must be evenly applied between parties. As the Commission rightly noted however, civil arenas such as the FWC are under no obligation to apply principles developed in the criminal law - even if issues of individual rights might arise. Where an event creates both criminal and civil repercussions, differing courts are certainly within their rights to restrict evidentiary considerations to their particular ‘patch’ of the law.

KNOWING the right principles

In considering Mr Wright’s admission to police at the scene of the accident, it was held on appeal that Vice President Watson had taken the appropriate line of leaving the Pfitzner principle where it belongs – in the arena of criminal law jurisprudence.

As a result, it was established that the employer could certainly use the statement to police to assist in establishing the employee’s unacceptable behaviour prior to the accident. This, combined with a fair and even-handed process across the history of Wright’s poor behaviour, ensured that the dismissal was found to be fair in all the circumstances.

The case reminds us that the evidentiary principles applicable to workplace law are quite particular, and capable of being distinguished from criminal and other standards. We urge employers to find the time to keep up-to-date on the principles applicable to unfair dismissal, to ensure that relevant decisions are made with the best possible information.

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.

Harriet Stacey 

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