Perth Conducting Workplace Investigations Advanced

Vince Scopelliti - Tuesday, May 25, 2021

Perth – limited vacancies available for our June Public Training Course

CONDUCTING WORKPLACE INVESTIGATIONS (ADVANCED)

Perth 22nd to 24th of June 2021

This in-depth program is tailored to meet the needs of government investigators and HR personnel who are required to conduct or supervise investigations into workplace misconduct including but not limited to, harassment, bullying, interpersonal grievances, fraud, or corruption.  

Delivered over three days, the WISE Workplace Conducting Workplace Investigations (Advanced) course is suited to individuals with prior industry knowledge and experience in the field who are seeking to enhance capability, consolidate knowledge, build processes and improve practical skills in line with the Australian Government Investigation Guidelines.  

This public training course is located in Perth, Western Australia, and runs from the 22nd of June to the 24th of June inclusive.

For information about this invaluable course click the link below or contact our team on 1300 580 685 or admin@wiseworkplace.com.au 

 

#WISEWorkplace #ProfessionalDevelopment #Training #HumanResources #Investigation #Misconduct #Allegation #Complaint #humanresources #WorkplaceInvestigation #Perth #WesternAustralia

http://www.wiseworkplace.com.au/training/conducting-workplace-investigations-advanced


Melbourne Investigating Workplace Misconduct

Vince Scopelliti - Tuesday, May 25, 2021

Melbourne - limited vacancies available for our June public training course. 

INVESTIGATING WORKPLACE MISCONDUCT 
Melbourne 2nd June 2021

One of the most critical skills required by HR professionals in Australia today is the ability to undertake effective, quality and procedurally appropriate investigations into workplace misconduct. 

WISE Workplace’s foundation training program Investigating Workplace Misconduct (IWM) provides participants with the essential knowledge and practice skills to lead or participate in the investigatory process.

This one-day workshop focuses on the investigatory processes required to effectively asses complaints, interview relevant stakeholders, gather evidence and make critical decisions that effect employees. Industry case studies which highlight current case law, industrial legislation, and the latest research on investigation methods, including interviewing techniques and the accessibility of digital information are just some of the features of this course.

For information about this invaluable course click the link below or contact our team on 1300 580 685 or admin@wiseworkplace.com.au

#WISEWorkplace #ProfessionalDevelopment #Training #HumanResources #Investigation #Misconduct #Allegation #Complaint #HumanResources #WorkplaceInvestigation #Melbourne #Victoria 

National Volunteer Week

Vince Scopelliti - Wednesday, May 19, 2021



Happy National Volunteer Week, Australia! Australia has over six million volunteers who support charities, not for profit organisations, special interest groups and businesses. Volunteers play a vital role in our communities and contribute over 600 million hours each year helping others.

Many organisations do a fantastic job of recognising and valuing their volunteers. An important part of supporting volunteers is ensuring that they are aware of their rights, duties and responsibilities relating to their duties. This includes their right to provide feedback, raise concerns, report an incident or make a complaint.

We often find that organisational complaints systems and processes don’t meet the needs or expectations of volunteers. This can lead to volunteers choosing to leave their volunteering role rather than raising concerns and navigating the ‘corporate system’. Having a fair, equitable, transparent and accessible feedback process which meets the needs of your volunteers is essential. 

WISE Workplace are experts in complaints management, incident investigations and workplace mediation involving employees and volunteers. For information about how WISE Workplace can assist your business, reach out on 1300 580 685 – admin@wiseworkplace.com.au

#WISEWorkplace #Volunteers #Volunteerism #NationalVolunteerWeek  

May 17 is the International Day Against Homophobia - IDAHBOT

Vince Scopelliti - Monday, May 17, 2021

May 17 is the International Day Against Homophobia, Transphobia and Biphobia (IDAHOBIT). IDAHBOT is a great opportunity for organisations to highlight their commitment to LGBTQIA+ inclusion and diversity, and to reinforce the position that discrimination has no place within their business.

The importance of inclusive, non-discriminatory workplace practices and culture is not a new concept. In fact, the conversation about inclusivity has been going on for decades. In addition, workplaces have been obliged to not engage in discriminatory practices for many years...so why is discrimination still an issue, and what can employers do about it?

Policies, Procedures & Training

Documenting and describing your company’s commitment to LGBTQIA+ inclusion is the first step. Training staff (particularly human resource staff and front-line managers) is the second. This is essential in order to ensure that all staff are provided with clear information regarding your business' commitment to inclusion, as well as ensuring those responsible for supervising and managing staff have been afforded the opportunity for professional development and learning in relation to workplace discrimination.

It is also important to clearly communicate the steps that people need to take to query or complain about a workplace practice or the conduct of an employee if they believe it breaches organisational policy. All concerns regarding discrimination should be reviewed and investigated – this demonstrates both your committment to eliminating discrimination, and your dedication to improving the diversity and culture of your workplace.

Visibility Matters

Promoting the visibility of your organisations committment to inclusivity is a great way to introduce or enhance a culture of safety and diversity. Simple and effective ways to improve your organisations visible support of LGBTQIA+ people include:

  • Displaying posters and signage of LGBTQIA+ inclusive flags in workplaces
  • Describing the organisation's committment to inclusive recruitment practices when advertising positions with in your company
  • Displaying LGBTQIA+ committment statements on your company’s website
  • Reviewing web copy, brochures, corporate documentation, forms and promotional material to ensure that your company's use of images, photographs and language is inclusive and contemporary.

By enhancing the visibility of your committment to inclusiveness, your organisation gives a clear signal to internal and external stakeholders that you value and respect diversity.

Discrimination and Bias

Identifying when and where discrimination occurs within your business is another important task. We often think about discrimination as overt, direct and explicit – a cisgender candidate being offered a job over a more qualified trans candidate for example. Whilst this type of discrimination sadly does still occur, discrimination arising from unconscious bias or implicit bias is more common, and also more difficult to detect and correct.

Unconscious bias describes the attitudes we hold about others as reinforced by our own personal environment, identity and experiences. Our preconceived beliefs, attitudes, perception of stereotypes, and social perceptions of gender identity and sexual identity can all result in the formation of unconscious bias.

In the workplace, unconscious bias about LGBTQIA+ people could impact the way your organisation advertises, recruits, selects and manages staff. Whilst not intentional, it may still be discriminatory and can adversely impact your workplace culture and your employee experience. Investigaing complaints or concerns relating to possible unconscious bias can also be difficult and complex experience.

Reflecting on individual and collective unconscious bias in the workplace can assist leaders and managers to identify opportunities for improvement, and contribute towards building diverse and inclusive workplace practices.

WISE Workplace proudly celebrates International Day Against LGBTQIA+ Discrimination. All people have the right to live and work free from discrimination. WISE Workplace is committed to providing an inclusive and safe workspace for all, and to ensuring our clients are empowered to implement best practice policies to protect the rights of asasasasa employees. If your organisation requires support in managing complaints or investigations relating to discrimination, WISE Workplace can assist your business, reach out on 1300 580 685 – admin@wiseworkplace.com.au


Supporting stakeholder wellbeing during an investigation

Vince Scopelliti - Thursday, April 15, 2021

Participating in a formal workplace investigation can be a stressful and difficult experience, whether you are a complainant, respondent, witness, manager or HR professionals. Organisations need to consider how the health, safety and wellbeing of all participants can be supported during an investigation and how they can meet their duty of care. Some simple preventative practices can be of significant benefit - here’s how.

Employee Assistance Programs

One of the first tasks to action when an investigation needs to take place is to ensure that all parties involved have access to wellbeing and support services. Employee Assistance Programs (EAP) are an important source of impartial support and can assist stakeholders in improving their resilience and reducing the impact of stress during difficult times.

Make sure you provide information to stakeholders about the services available through your EAP provider, including details of how to access the service and important information about their rights and entitlements (such as the right to privacy). Don’t forget to document this step.

If the investigation is likely to be complex or involves sensitive or potentially traumatic elements, it is a good idea to check with your EAP provider that they have people with the right skills and training to support employees involved in a workplace investigation. That way, you can confidently refer your workers to a quality service with reliable support.

Clarity & Communication

Another way that the potential stress and strain of an investigation can be reduced is by providing clear and regular communication to stakeholders. For most employees, being a party to an investigation is a very foreign experience. When people feel uncertain and unsure about what to expect during an investigation, the risk of someone experiencing stress and anxiety can increase. This can also have the effect of increasing conflict, complications and parties seeking help from lawyers or other advocates.

Wherever it is possible and appropriate to do so, keep stakeholders informed about procedural matters such as timeframes, organisational policies and processes. Ensure that they have been provided with the information they need to understand how the principles of procedural fairness will be applied in relation to the investigation, their rights and entitlements. Make sure you also let them know who they can contact if they need additional information or want to query a particular process.

Confident & Skilled Investigators

So, your employees are being supported and they understand what to expect during the investigation as well as their rights. The next step is making sure that people leading the investigation are experienced, confident and expertly skilled in their practice.  When an investigation is of a highly sensitive nature, relates to a critical incident or involves a vulnerable person it is also essential to ensure that the interview and investigation process does not contribute to or cause further harm or distress.

It is also important to make sure that you consider how the wellbeing of your investigator could be impacted. Think about their experience, skills, and specialist expertise. An investigator who is experienced in insurance fraud or financial misconduct may not be the right person to lead an investigation into discrimination or sexual harassment. Some good questions to ask yourself are:

  • Does my investigator have the requisite qualifications and industry experience to perform the task I am asking of them?
  • Does my investigator have the confidence, tools and techniques necessary to tackle difficult topics and subject matters, and to inspire trust in the parties?
  • Does my investigator have the resilience and insight to effectively manage any personal feelings or impacts which arise as a result of the investigation?  

If you can confidently answer “yes” to these three questions then you are on the right track. If not, don’t panic.

WISE Workplace provides a range of investigation services nation-wide. If you need assistance with managing an investigation, developing or strengthening your HR team’s skills in this area or would like to discuss how WISE Workplace could support your business please do not hesitate to reach out on 1300 580 685 or email admin@wiseworkplace.com.au .

Supporting stakeholder wellbeing during investigations

Vince Scopelliti - Friday, March 26, 2021

Participating in a formal workplace investigation can be a stressful and difficult experience, whether you are a complainant, respondent, witness, manager or HR professional. Organisations need to consider how the health, safety and wellbeing of all participants can be supported during an investigation and how they can meet their duty of care. Some simple preventative practices can be of significant benefit - here’s how. 4

Employee Assistance Programs 
One of the first tasks to action when an investigation needs to take place is to conduct a risk assessment based on the information available. This should include a vulnerability assessment and ensuring that all parties have access to wellbeing and support services at every stage of the process. Employee Assistance Programs (EAP) and or other similar programs are an important source of impartial support and can assist stakeholders in improving their resilience and reducing the impact of stress during difficult times. Make sure you provide information to stakeholders about the services available through your EAP provider, or any other alternative support services you can offer, including details of how to access the service and important information about their rights and entitlements (such as the right to privacy and access to a support person). Don’t forget to document this step. 
If the investigation is likely to be complex or involves sensitive or potentially traumatic elements, it is a good idea to check with your EAP provider or alternative support service that they have people with the right skills and training to support employees involved in a workplace investigation. That way, you can confidently refer your parties to a quality service with reliable support. 

Clarity & Communication 
Another way that the potential stress and strain of an investigation can be reduced is by providing clear and regular communication to stakeholders. For most employees, being a party to an investigation is a very foreign experience. When people feel uncertain and unsure about what to expect during an investigation, their stress and anxiety can increase, which can also have the effect of increasing workplace conflict, complications and parties seeking help from lawyers or other advocates. So wherever possible and appropriate, you should keep stakeholders informed about procedural matters such as timeframes, organisational policies and processes. Ensure that they have been provided with the information they need to understand how the principles of procedural fairness will be applied to the investigation, their rights and responsibilities. Make sure you also let them know who they can contact if they need additional information or want to query a particular process. 

Confident & Skilled Investigators 
So, your employees are being supported and they understand what to expect during the investigation. The next step is making sure that people leading the investigation are experienced, confident and expertly skilled in their practice.  When investigating matters which are highly sensitive, critical or involving vulnerable people it is also essential to ensure that the interview and investigation process does not contribute to or cause further harm or distress. It can also be wise to consider how the investigator will be perceived by parties in the interview context, making sure you also consider gender and cultural issues relevant to the matter. 
 It can also be important to ensure you consider the impact of the case on the wellbeing of your investigator. Think about their experience, skills, and specialist expertise. An investigator who is experienced in insurance fraud or financial misconduct may not be the right person to lead an investigation into discrimination or sexual harassment, and might find the subject matter challenging. Some good questions to ask yourself are: 
  • Does my investigator have the requisite qualifications and industry experience to perform the task I am asking of them? 
  • Does my investigator have the confidence, tools and techniques necessary to tackle difficult topics and subject matters, and to inspire trust in the parties? 
  • Does my investigator have the resilience and insight to effectively manage any personal feelings or impacts which arise as a result of the investigation?   
If you can confidently answer “yes” to these three questions, then you are on the right track. If not, don’t panic. WISE Workplace provides a range of investigation services nation-wide. If you need assistance with managing an investigation, developing or strengthening your HR team’s skills in this area or would like to discuss how WISE Workplace could support your business please do not hesitate to reach out on 1300 580 685 or email admin@wiseworkplace.com.au.

Preventing Fraud and Financial Misconduct in the Workplace

Eden Elliott - Friday, March 12, 2021

by Cassie Roylance 

Unfortunately, employee fraud and financial misconduct is a common issue for businesses in Australia, costing billions of dollars each year.  WISE Workplace is often engaged by businesses to undertake investigations regarding financial misappropriation, theft and fraud – but organisations can do a lot more to prevent fraud before it can occur

“Misplaced trust, inadequate hiring and supervision policies, and a failure to implement strong internal controls create an environment that is ripe for an employee to commit fraud. Employee fraud is therefore about opportunity.”

CPA Australia

The approaching end of the financial year provides business with an opportunity of their own, to refresh policies and safeguards which prevent employee fraud. Here are three helpful recommendations from our years of work in this area, to help your business reduce and control opportunities to commit fraud.

Third Party Audits

WISE Workplace has found that by the time concerns regarding employee financial misconduct are raised, the behaviour has been going on unnoticed for years at a time. This is especially the case in small businesses with a culture of trust, low staff turnover and in-house financial management.

By implementing an annual financial audit process, businesses are better placed to detect discrepancies early. An external audit process can also reduce the likelihood of employees doing the wrong thing, as the chances of being caught and facing consequences significantly increase.

A third-party audit created a culture of accountability, reduces opportunity for misconduct to occur, and may prevent major financial losses which can be a catastrophe especially for small businesses

Improving Financial Literacy

Another helpful way to reduce the risk of fraud and misconduct in your workplace is to improve the financial literacy of employees who hold a financial delegation. Have you noticed a tendency for team leaders and managers to sign paperwork without reviewing it appropriately first? This is an indication that there may be lack of awareness or understanding about the significance of the financial delegations they hold and of the practices required to meet these obligations.

By enhancing the ability of the leaders in your organisation to review, query and vet financial material, they will be well placed to identify matters such as purchase orders, invoices and contract terms that are not quite right.  

Strengthening Procurement Processes

Another area which can reduce the opportunity for financial misconduct to occur is through good governance around real and perceived conflicts of interest. Conflicts of interest should be viewed as an important part of ensuring transparency, probity and due diligence in the procurement process.

Conflicts of interest are not the problem – unknown and unmanaged conflicts are. It is important that your staff understand the difference to encourage them to disclose conflicts. Once conflicts are identified, processes can be implemented to remove or manage the conflict. 

When a business is aware of real and perceived conflicts of interest, the procurement process is strengthened. By checking the Conflict of Interest register when engaging in procurement, your business can review and quality assure tendering and contracting awarding processes with third parties. Without this kind of rigour, employees may exploit the procurement process, perhaps by awarding contracts and tenders to businesses that they have a financial interest in, or that are owned and operated by a spouse or family member.


If all else fails and you do have evidence of unexplained anomalies, employee fraud or financial misconduct, rest assured that  WISE Workplace are experts in leading investigations into allegations and concerns of fraud and financial misconduct in private industry, the public sector and the not-for-profit sector. WISE Training also offers professional development courses for HR Professionals, Managers and Financial Leaders in relation to fraud investigation. For more information about how WISE Workplace can help your organisation, contact us on admin@wiseworkplace.com.au or call 1300 580 685.

Key Principles for Successful Conflict Resolution in the Workplace

Eden Elliott - Thursday, December 10, 2020

by Katherine Robertson 


Workplace conflict is considered one of the biggest cause of staff turnover and costs to businesses. Queensland Government research shows over 65% of employee performance problems are the result of strained relationships rather than a lack of skill or motivation. It is imperative therefore that those responsible for dealing with workplace conflict have the necessary skills to ensure conflict is resolved effectively.

Do not judge or decide who is right or wrong

When we are the observer of conflict between others it is easy to feel that what we are observing is ‘childish’, or even unfounded. When we sit in judgement, dismiss conflict, or spend our time trying to determine who is right and who is wrong, we lose the ability to understand the driving forces behind the contention. This creates a situation in which the conflict continues or even escalates.

Uncover what is driving the conflict

Often when parties are in conflict, what they present on the surface is not what is driving the conflict. It is imperative that we unpack what is happening for the individuals through an assessment process. To understand what is motivating individual differences, leading to disagreement, one must actively and openly listen to what is being presented.

Take the example of two children fighting over an orange, it is easy for a parent to halve the orange and put a stop to the arguing. However, if the parent took the time to understand what was driving the conflict, they may learn that one child needs the pulp to make a cake and the other wants the juice to drink. It is important that we understand what the drivers of conflict are, as these motivating factors represent what lies underneath the conflict being presented.

Empathise without aligning

This can be difficult to achieve, particularly if we have preconceived ideas of what the conflict is about. To build rapport with the parties it is imperative that we actively listen and empathise with their situation. For example, "it sounds like this has been a difficult time for you", "I can hear that you are confused and upset". These statements reflect the ability to empathise with the persons situation as well as demonstrates active listening, this approach leads to effective rapport building without aligning with the aggrieved person.

Aligning involves agreeing with one of the parties and/or justifying their actions or behaviours. For example, "It sounds like the other party was out of line", "You have every right to be angry, I would be too". Aligning leads not only to ineffective conflict resolution strategies but can also lead to an escalation of conflict and/or further complaints.

Adopt a strength-based and solution focussed philosophy

Operating from a place where we acknowledge that everyone has strengths, they bring to the workplace sets the foundation for a solution focused approach to conflict resolution. If we can support the conflicted parties understand their strengths, we create an environment where positive and future focused agreements can arise, where people can feel confident and in control of their professionalism.


At WISE Workplace, our specialist mediators and workplace engagement experts can assist you to resolve workplace conflict in a timely and effective manner for lasting results and thriving interpersonal relationships. Contact us on 1300 580 685.  

When to engage an external mediator?

Vince Scopelliti - Friday, November 27, 2020

By Katherine Robertson

Safe Work Australia research has found poor psychological safety costs organisations $6 billion per annum in lost productivity. The research also found interpersonal conflict was one of the main causes of work-related injury.   

It is essential that organisations have access to trained workplace mediators as they can be a valuable resource in resolving conflict amongst employees. Not all organisations have internal mediators and there are times when engaging an external mediator is advantageous.

Perception of alignment

When aggrieved employees feel their employer, or HR department is aligned with the other party to a dispute, whether this is real or perceived, it is often an indication that involving an external mediator will lead to better outcomes. External mediators do not have prior knowledge going into the mediation and only obtain information from the aggrieved employees to assess suitability for mediation. This means the mediator is only invested in the outcome being positive for all parties involved and not invested in a particular outcome.

Prior attempts to resolve conflict internally

Often as a first step, HR departments with the support of Senior Management seek to resolve conflict between their employees as a ‘soft touch approach’. This is often a good first step but if conflict is not resolved here, it can often lead to escalation, employees feeling nothing will change and also lead to an increase in sick days. If organisations have attempted the ‘soft touch’ approach to no avail, seeking the support of an external mediator can help offer a fresh perspective and support parties to reach agreements. 

Image: an external mediator can avoid the frustration of emotional appeals from parties.

High and complex conflict

Often HR professional become aware of conflict between employees when it has already escalated, become deeply engrained and is starting to have adverse effects across teams. Often in these situations a ‘soft touch’ approach will not resolve the conflict and engaging an external mediator is warranted.  Expert mediators can explore and uncover what is underlying the conflict and from there support parties to reach mutually accepted agreements on how they want to work with one another moving forward. External mediators adopt a strengths based, and solution focussed framework to support aggrieved employees reach practical workable agreements that are long lasting.

The need for practical future focussed agreements

Engaging an external mediator that does not know the day to day operations of the business can be advantageous because when it comes to supporting parties reach practical agreements they can often shed new light on areas that may not have been considered by HR and Management. Expert mediators are trained to support employees reach practical agreements by workshopping possible solutions and ensuring they are aligned with their organisational values.


WISE offers mediation and conflict resolution services in each state, which we can conduct remotely or in person. 

Get in touch with us on 1300 580 685 for more information, and be on the lookout for our next article on the Key Principles of Conflict Resolution.

Record damages awarded to NSW employee for wrongful termination: what can we learn?

Eden Elliott - Friday, October 30, 2020

Case study prepared by WISE Workplace State Manager NSW, Tracey Bosnich 

Image: unfair dismissal

Most of us may believe that if a contract is not signed, it is not legally enforceable. On 10 September 2020, the NSW Supreme Court handed down a significant decision, awarding record damages to an employee for termination of employment and amongst other findings, providing grounds upon which an unsigned contract may be held to be legally enforceable and take precedent over a signed contract.

Background

Ms Melinda Roderick (“Roderick”), the Executive Director of Washington H. Soul Pattinson & Company Ltd (“WHSP”) had been employed since 2006,  when Roderick commenced in the role of Chief Financial Director. She was appointed as Finance Director in 2014, till 12 April 2018, when she was terminated without notice. More notably, Roderick was the only female on the Board and was the second most senior employee in the company.

On 10 September 2020, Roderick was awarded record damages in the amount of $1.105 million. The case was litigated on the issues of termination of employment without warning, failure to give reasonable notice of termination, and failure to pay both short term and long-term incentive entitlements.

Original Signed Contract v Unsigned Contract

Roderick's terms and conditions of employment were originally set out in the 2006 contract ("the original contract"). However, following Roderick becoming the Finance Director in 2014, a draft ‘new contract’ was made in 2015, but was never signed. WHSP argued the original contract prevailed. 

Roderick submitted that when she became the Finance Director, the original contract was discharged. The Court noted that there was a significant change in her role tasks, obligations and duties and that the original contract could not have appropriately been applied in the circumstances, especially where the original contract ‘did not contain a clause specifying that it would remain in force, even if the duties are altered’. It was noted that under the new contract Roderick's responsibilities had significantly increased, in that she became the director of 12 companies. 

Despite the new contract being unsigned, the Court found that the implied intention was for her original contract to be discharged and for the parties to be bound by the new contract. Therefore, the terms and conditions of the unsigned new contract were found to apply and took precedent over the signed 2006 contract.

Calculation of termination payment 

WHSP calculated Roderick’s termination payment based on the signed original contract. Accordingly, Roderick was only paid three months’ of her old salary, in lieu of notice, which was expressly stipulated as the notice period in the original contract.

Roderick’s claim for damages was made in accordance with the notice period expressly stipulated in the new unsigned 2015 contract, being 24 months; and for payment of an amount representing her incentive entitlements under both the long-term and short-term incentive plan and scheme, included in the new contract.

Key issues litigated with respect to damages

There were five issues litigated: whether the original 2006 contract containing the express term of three months' notice applied; if the new unsigned contract applied, what was the implied period of notice; the notice period Roderick should have actually been given; determination of whether Roderick was eligible for entitlements pursuant to the short term and long-term incentives; and the reason for her termination.

Implied Notice and Incentive Bonuses

WHSP argued the original contract provided an express term of a three-month notice period.  As they did not give three months' notice, WHSP paid Roderick an amount in lieu of the three months’ notice and therefore argued they were not in breach of contract.  Roderick argued she was entitled to 24 months’ notice in accordance with the unsigned 2015 contract.

Once the Court established that the original contract no longer applied, it had to determine, what the ‘implied reasonable notice term’ should be. The Supreme Court did not uphold the 24 months’ notice period in the new contract, but determined that Roderick was entitled to 12 months' notice.

Roderick argued the new contract entitled her to the incentives. WHSP argued it was not obliged to pay the incentives as payment was discretionary and dependent on performance, and that Roderick was terminated for ‘poor performance’,  had not worked the full year and was no longer employed. WHSP further submitted that Roderick was terminated prior to the assessment of these incentive benefits.

The Court stated any "decision as to payment is only discretionary in the sense of assessing [Roderick's] performance against the KPIs". The Court stipulated that was an implied contractual obligation to "exercise any discretion conformably with the purpose of the scheme and not to choose arbitrarily or capriciously or unreasonably to not pay money, irrespective of whether the agreed parameters had been achieved". The argument to not pay Roderick as the employment ended "only a matter of days before the end of the relevant financial year would be quite unreasonable and arbitrary".

Reason for termination

The termination letter stated that Roderick was "not the right fit". Roderick argued that she was terminated without explanation. WHSP then subsequently submitted during the litigation, that Roderick was actually terminated for “poor performance”.

The Court noted that it was a "curious feature" that there was not a single document noting an issue with Roderick's performance, including the termination letter itself. It did not accept that Roderick had performed poorly,  but more so "that it (WHSP) could do better in terms of value for its money" given that a day after terminating Roderick, WHSP hired a new CFO on a lower salary. Further, the new CFO had no position on the board and reported to the chief executive, which the Court noted "would have saved [WHSP] a considerable sum".

Key lessons

This case illustrates the following important points for employers:

  • employers should be aware of the terms of their employment contracts;
  • employers should ensure the contract is executed by all the parties;
  • where an employee’s role title, duties and obligations are changed, the Court will look into the ‘intention of the parties to be bound by that contract’ as well as any alteration of responsibilities and duties, to determine when there is a signed contract and an unsigned contract, which contract will apply.

The dangers of wrongful termination for employers are significant – in this case, to the tune of over a million dollars. Employers should always be cautious when ending employment contracts, particularly if the termination involves role changes, very senior employees, complaints, disputes, poor performance or particularly wrongdoing, to ensure termination processes are both compliant and procedurally fair. 

WISE Workplace offers consultancy support with HR and dispute resolution matters to assist employers in meeting these obligations.  If you are seeking advice on the proper way to resolve an internal workplace dispute, contact us today.