Procedural Fairness its history and Central Tenet

Harriet Witchell - Wednesday, September 07, 2016

Procedural fairness (or ‘natural justice’ as it is otherwise known) has ancient origins, dating back to the Greek philosopher, Plato and Roman philosopher, Seneca 1  It applies in situations where there is a decision to be made which could have an adverse outcome on the rights, interests or legitimate expectations of a person. Historically this concept applied to formal legal decision-making processes, but these principles also apply to administrative decision-making processes carried out by government officials and agencies and have spread into all applications of employee related decisions including the application of the Fair Work Act and Work Health and Safety Legislation.  Procedural fairness is observed for individuals and organisations in all levels of government complaint management being observed in commissions of inquiry and Ombudsman investigations. 

Since the House of Lords decision in Ridge v Baldwin 2 , a case concerning the decision of a police authority to dismiss an employee, common law jurisdictions accepted that principles of procedural fairness apply to government decisions affecting employment. 

In Australia it has become standard best practice to apply principles of procedural fairness to workplace investigations into employee misconduct, particularly where a likely outcome of the process is dismissal or demotion of the employee. 3

In Lohse v Arthur, the Court described procedural fairness as a flexible and practical obligation to adopt fair proceduresappropriate to and adapted to the circumstances of the case – in essence this means that the employee under investigation be given a ‘fair go'. 

In practice procedurally fair workplace investigations reflect the following principles (which are discussed in detail in the following Part): 

1. A fair hearing 
2. Independent and unbiased decision makers 
3. A decision based on evidence

Indeed, the FWA stipulates that for those organizations covered by the FWA 4 , when considering whether dismissals are unfair, the concept of a ‘fair go all round’ is a paramount consideration. 5  Under section 387 of the FWA, some of the criteria to be taken into account in determining whether a dismissal was harsh, unjust or unreasonable reflect common law principles of procedural fairness, thereby underscoring the importance of these principles. 

How to implement the principles of procedural fairness in your workplace practices and investigation procedures is explained in detail during our investigation training courses.  Visit our website for more information here
AUTHOR: Alison Page, Legal Council | WISE Workplace

1 See Creyke, Robin and McMillan, John. 2009. Control of Government Action Text, Cases and Commentary Second Edition, Lexis Nexis Butterworths pages 683, 689 citing Callinan J in Re Minister for Immigration and Multicultural Affairs: Ex Parte Lam (2003) 214 CLR 1

[1964] AC 40
3 See for example Jarratt v Commissioner for Police [2005] HCA 50
4 According to the Federal Government website, most Australian workplaces are covered by the FWA. Those that aren’t are covered by their state system. Those not covered include:
  • employees employed by state government and local governments (unless their employer has a registered agreement in the national system)
  • many employees employed in Western Australia.

5 See FWA section 381(2) which refers to Sheldon J in Re Loty and Holloway v Australian Workers’ Union [1971] AR(NSW) 95


Mitigating Factors and Dismissal - What is Relevant?

Harriet Witchell - Wednesday, March 16, 2016
Mitigating Factors and Dismissal - What is Relevant?

If you’ve ever conducted a disciplinary interview with an employee, you may have asked them if there are things they’d like you to take into account when making your decision about how to handle the matter.  

These are often referred to as ‘mitigating factors’, and are an important part of the disciplinary process. But we find employers can be uncertain about the concept, and what is relevant. 

And rightly so – mitigating factors are fluid, changing and evolving depending on the circumstances of a matter.

the Legislative basis for mitigating factors

The Fair Work Act sets out the criteria for the Fair Work Commission (FWC) to consider whether a dismissal is harsh, unjust or unreasonable, including whether there was:

  • A valid reason.
  • Procedural fairness.
  • Opportunity for the employee to be represented. 

It also requires that the FWC consider “any other matters that [it] thinks relevant.” 

This is the provision under which the FWC will consider mitigating factors – any background circumstances that might explain the conduct or reduce the severity of the penalty for the employee.

It is a deliberately vague provision, as mitigating factors could include just about anything, depending on the circumstances of the individual. 

Employers must consider these factors

Because the FWC must consider mitigating factors when determining an application for unfair dismissal, it follows that employers must also consider mitigating factors when making disciplinary decisions, including whether to terminate employment. 

This also serves as a reminder to employers that when deciding whether to terminate employment, all of the employee’s circumstances need to be taken into account to arrive at a “reasonable” decision. It is especially important to ask the employee whether there are any matters that they would like to be taken into account.

The importance of this was highlighted in the recent decision of the FWC in Mary-Jane Anders v The Hutchins School.
A real world example
Anders was a maths teacher and an academic administrator, employed by the school. She reported struggling with her workload and not long afterwards suffered a breakdown and took leave. After returning to work, she again broke down and took further leave. 

In the meantime, the school had removed her from her administrative role. She took issue with the allocation of classes that she was to teach. 

Her relationship with the school’s leadership broke down, and some of her colleagues refused to work with her. She used social media and emails to colleagues to vent her concerns.

The school’s deputy head terminated her employment following an investigation, citing a total breakdown in the employment relationship. Anders claimed unfair dismissal in the FWC.

The FWC made findings about bias, but also found that there were some significant mitigating factors which the school ought to have taken into account when investigating the matter. These included:

  • Anders’ previous good employment record. 
  • Her mental illness diagnosis.
  • Her husband’s critical illness at the time when allegations were first raised with her.
  • The school’s failure to address earlier problems in the relationships between Anders and some of her colleagues.

In light of these factors, the FWC found that, even though Anders’ emails and social media comments were poorly judged, the termination of her employment was harsh and there was no valid reason for dismissal. 

But even so, because her relationship with the school was so broken down, the FWC awarded compensation instead of reinstatement. 

The need to take mitigating into account

This decision is a reminder to employers of the importance of taking into account any mitigating factors. If an employee’s conduct is out of line or serious enough for termination to be considered, employers should do everything possible to get to the bottom of the matter. 

In our experience, the more thoroughly employers try to understand an employee’s conduct, the more likely the employer’s investigation will be seen as fair and reasonable. For further information about mitigating factors and how to address them, WISE Workplace can help. We’re just a phone call away. 

Undercurrents of Bias can Drown an Investigation

Harriet Witchell - Wednesday, February 24, 2016
Undercurrents of Bias can Drown an Investigation
In the often stormy seas of workplace investigations, the issue of investigator bias lurks in the undercurrents, a trap for the unwary employer.   

One of the most regular complaints we hear from people who have been the subject of an investigation is that the investigator was biased and the decision was predetermined, and they had no chance of a fair hearing.  

It doesn’t really matter whether bias is real, it is the perception of bias that undermines the investigation process and can keep employers working with ‘problem’ employees through various court processes for years. You heard right - YEARS! 

There may be many sound reasons for using in-house staff to conduct investigations. These include: 
  • Keeping the costs down. 
  • Having someone familiar with the culture and work practices of the organisation. 
  • Knowing the individuals.   
So long as the person you use has the required skills in collecting evidence there shouldn’t be a problem, right?  

Wrong! – the issue over bias can become the dangerous undertow that makes all those cost savings irrelevant when you are embroiled in a protracted court case.  

What happened in Anders

Anders was employed by the school, located near Hobart, as an academic administrator (AA) and maths teacher.  

In 2013, Anders said that she was snowed under with her AA duties. She was also diagnosed with anxiety and depression, and took extended leave. At the end of 2013, the school removed her from the AA role. 

Anders disputed this decision by application to the Fair Work Commission (FWC). An outcome was negotiated, but Anders maintained her protests about the decision. 

Following her return to work, Anders had some further episodes of depression and anxiety, which again caused her to take leave. 

During this period, Anders’ relationship with the school’s management and other staff became problematic. It was alleged that she: 

  • Took issue at not being allocated a particular maths subject to teach, saying that “the gloves [were] off.”
  • Made some social media posts about her employment issues which caused the school to caution her about inappropriate use of the platform.
  • Sent emails to colleagues about her dispute with the school.
  • Expressed mistrust in the school’s headmaster and deputy headmaster and would not communicate with them.
  • Had such a difficult relationship with other teachers in the faculty that they had refused to work with her. 
  • Claimed that she had been discriminated against on the basis of her mental illness. 
  • Showed discourteous and disrespectful behaviour towards her colleagues. 

Deputy Headmaster Alan Jones investigated the matter. He put the allegations to Anders in writing and she was asked to attend a meeting and was invited to have representation present. Following the meeting, Jones interviewed other witnesses.  

Jones decided to terminate Anders’ employment, having found that most of the allegations against her were substantiated. He wrote to her saying that there was a total breakdown in the employment relationship, making her continued employment at the school impossible.  

Anders made a claim for unfair dismissal in the FWC. 

The FWC decision

The FWC found that while Anders’ behaviour may have indicated a lack of wisdom, it did not constitute a breakdown of the employment relationship. 

Because Jones was investigating the matter, the FWC said that he was in effect investigating an allegation against himself as Anders had allegedly declared that she did not trust the headmaster or deputy headmaster of the school. 

The concern was that he could not be impartial. This, combined with Jones’ knowledge of Anders’ mental health issues, “did not provide a reasonable basis for Mr Jones to conclude that each of these allegations [was] proven.” 

The FWC found the termination was harsh as there was no valid reason, and ordered the school to pay compensation. 

not the only case

This issue is certainly not an isolated one. The case of Keiko v Qantas also involved an allegation of bias. The investigator in that case was criticised for accepting the account of a close work colleague rather than the weight of contrary evidence from many other witnesses. As in Anders, using an independent investigator would have circumvented this issue.

Keeping investigations independent and without bias is a central tenet to procedural fairness. While independent investigators are not immune from bias or indeed allegations of bias, it is important for employers to recognise when their in-house team is too close to a situation to effectively investigate without bias. 

If you have a problem that you want to discuss or think an independent investigator is the answer, talk to one of our case managers about how our workplace investigators may be able to help. 

The Year that Was: Lessons from 2015 Part 2

Jill McMahon - Monday, January 25, 2016
Lessons from 2015 Part 2

Here at Wise Workplace, we’ve been focused recently on reviewing the past in order to learn for the future. Last week’s blog, part 1 of our two-part series on lessons employers can take from 2015, highlighted some important case law around the themes of bullying and the definition of ‘at work’.  

In part 2, we take a look at important decisions in other areas of workplace law, including workplace culture and procedural fairness, and the implications for employers. 

Workplace culture and its impact

When it comes to workplace culture, alcohol seems to be a key feature – and an increasingly vexing issue for employers.

In the NSW District Court matter of Mitchell-Innes, a manager attended a conference still drunk from the night before. He disrupted part of the session and his employment was later terminated for gross misconduct. 

The court found that alcohol consumption was entrenched in the workplace culture, and this meant that the employee’s conduct was not serious enough to warrant termination of employment. 

Similarly, Keenan’s drunken behaviour during and after the office Christmas party led to the termination of his employment. 

Both cases found that misconduct would be harder to establish when there was a culture of drinking in the workplace, including after-hours functions. 

In Keenan, the FWC listed some steps of caution that a reasonable employer should take in trying to stop things getting out of hand, including ensuring that alcohol service is restricted, and employees are aware of employer expectations of behaviour. 

Overstepping the mark

2015 also saw cases of workers being unfairly punished for a third party overstepping the mark.

In Amiatu, employees were accused of theft. Their union representative persuaded the company to allow them to resign rather than be terminated. The employees later claimed they were coerced to resign because they feared police involvement. The FWC held that the union representative failed to act in the best interest of the workers, even though the employer had reasonably believed it had negotiated an outcome.

This is a reminder to employers to be careful about negotiating with employee representatives, especially when the employee is not present. 

In the case of BQY, systems designed to protect went too far. A female student teacher had allowed a former student to kiss her some time after she had finished her placement and after the boy had turned 18. She was subsequently refused a clearance to work with children by the Children’s Guardian, placing her teaching career in jeopardy. On review, it was found that she was not a threat to the safety of children, and she was granted the clearance. 

Procedural fairness and standard of proof

No workplace investigation is of value unless it is undertaken properly, so it is no surprise that procedural fairness featured prominently as a theme last year. 

In Amiatu, as well as the union overstepping the mark, the FWC found that the employer had not uncovered enough evidence to prove allegations of theft and had failed to objectively assess the matter. The Elton case concerned an employee’s alleged suspicious behaviour. The FWC found there was a reasonable explanation for the employee’s conduct, and the employer did not have enough evidence to support the allegations. 

Both cases are a reminder that evidence must be carefully assessed and all possible options and explanations considered. Engaging an independent investigator is often an excellent way to achieve this.

In Willis, there was some confusion about whether the employee was being performance managed or disciplined. The FWC found that employers must be clear about the process from the outset, and that any action taken against the employee must be a proportionate response to their conduct.  

The NSW Supreme Court case of Bartlett found that the employer could effectively set its own standard of proof, depending on the wording of the employment contract in question. It will be interesting to see how this decision is subsequently developed, as it seems a significant departure from the usual standard of ‘on the balance of probabilities’. 

A timely reminder

These employment law decisions of 2015 serve as a good reminder of the fundamentals for disciplinary matters or termination of employment: 

  • Investigate properly and fairly.
  • Maintain objectivity. 
  • Act within authority.
  • Foster a workplace culture that is safe and healthy for all.

Keeping these things in mind, we hope that our clients enjoy a happy and prosperous 2016!  

The Year that Was: Lessons from 2015 Part 1

Jill McMahon - Monday, January 18, 2016
Lessons to be learned from 2015

It’s a good time to take stock and reflect on the year that was. The cases that hit the headlines in 2015 had some important messages for employers with some common themes.   

In this article, the first in a two-part series, we will look at how the Fair Work Act’s definition of 'at work' has been developed and also how bullying issues have evolved.   

In our next article, we will look at case law covering the themes of workplace culture, procedural fairness and what can happen when an authority oversteps the mark.   

When is employee conduct considered to be 'at work'?

One of the hallmarks of the Fair Work Act is that the employee conduct must have occurred 'at work'. In Bowker, the Fair Work Commission (FWC) considered whether posting comments on social media could be considered 'at work'. It found that it was not a question of when the comments were posted but rather when they were accessed by the targeted workers. If access occurred while they were at work, it was a sufficient connection.    

In another matter that considered an application for a Stop Bullying Order (SBO), the FWC seemed to extend the Bowker decision, saying that cyberbullying could happen anywhere. If the parties were connected on Facebook because of their work relationship, that was 'at work'.   

In Keenan, drunken and offensive behaviour during and after the office Christmas party led to termination of employment. The FWC found that the party was a sanctioned company event and therefore the conduct occurred 'at work'.   

Although Deeth was charged with a serious criminal offence unconnected with his work, his employer terminated his employment. The FWC found that the alleged criminal conduct alone was not a valid reason to dismiss because it was not 'at work'. There needed to be a proper investigation establishing a connection with the employee’s work.   

These cases are varied in their factual circumstances, but they serve as useful reminders to employers that:   

  • 'At work' includes social media activity. It appears that the law will develop to the extent that an online connection between two work colleagues will be sufficient to satisfy the requirement.  
  • Employer-sanctioned Christmas parties and after-hours events are considered to be 'at work' and employers should take reasonable precautions to ensure they are without incident. 
  • Even criminal charges won’t give rise to an automatic right to terminate employment. Procedural fairness is paramount – there must be a proper investigation, as we will explore in Part 2 of this series.    
Developments in workplace bullying

For good reason, workplace bullying remains a hot issue. A happy workplace is a productive workplace but even so, it seems there are ever increasing ways for bullying to occur.   

In 2015 the FWC issued its first formal ruling for an SBO since the new legislative provisions came into effect. Two employees complained of bullying conduct by a manager. There was an informal investigation, an unsuccessful mediation and ultimately the manager resigned but was later seconded back to the workplace.  

The FWC found a real risk to the workplace health and safety of the workers and that the employer had not taken the issue seriously.  The FWC issued orders, to remain in force for two years. As we have already seen, the cases of Bowker and a subsequent SBO application dealt with the very serious and growing issue of cyberbullying. In its decisions, the FWC has made it clear that employers have a duty of care to ensure the workplace health and safety of all employees and this includes in online and social media environments.   

Employers must:   

  • Take seriously any complaints concerning the conduct. 
  • Take immediate action to stop the conduct. 
  • Have proper policies and procedures and educate all staff about appropriate conduct. 

What constitutes an employee being 'at work' and the ever expanding realm of workplace bullying continues to dominate the case law landscape. It is clear that employers must remain vigilant in monitoring employee behaviour and educating all staff about appropriate conduct, particularly online. These issues are, in short, a product of our modern world, and there are important lessons to be learned from these cases. 

First Cab off the Rank? Interviewing Respondents

Jill McMahon - Monday, November 23, 2015
Interviewing Respondents in Workplace Investigations

Even the simplest of workplace investigations can be a tricky balancing act. You need to consider how to investigate the matter, collect evidence and adhere to various laws, all the while having regard to employee welfare and the needs of your organisation. 

Strategy is a key element of a successful investigation. One important question to consider, especially when investigating a complaint, is when to interview the respondent. 
Investigation fundamentals
At its core, the purpose of a workplace investigation is to establish the facts of the incident or issue. 

Investigation plans are essential, and because every circumstance is unique, every investigation must have its own specially formulated plan. But every plan must have three common threads:

  1. Procedural fairness
  2. Gathering as much evidence as possible
  3. Ensuring that all relevant issues have been properly explored

Having regard to these three issues when planning the investigation necessarily involves a consideration of when to interview the respondent. There is no “one size fits all” answer, but there are a number of considerations that may help you make a decision about your approach.

Advantages of interviewing the respondent first

Interviewing the respondent at the start of an investigation has a number of advantages. 

For example, when an allegation is made, procedural fairness requires that an investigation is conducted in a timely manner. If the respondent admits the allegation straight away, the matter can be dealt with quickly and perhaps without involving other parties. 

This increases efficiency and minimises stress on the respondent and complainant. It also cuts down on management time spent investigating, and there is a greater chance of confidentiality being preserved because fewer parties are involved. 

In the course of an investigation, there will often be more than one interpretation about what has happened. There may be motivating factors of which you, or other witnesses, are unaware. 

Putting allegations to a respondent at the outset may provide new avenues for investigation that would otherwise have been unknown to you. For example, the respondent may have been provoked by another person. 

Interviewing a respondent at the beginning is a good way of getting all the cards on the table so that you can fully comprehend the issues and refine your investigation plan.

Disadvantages of interviewing the respondent first

Putting allegations to a respondent must be done in a way that does not undermine procedural fairness. One of the difficulties of interviewing the respondent first is that you are putting forward unfounded allegations. So special consideration must be given to the manner in which the allegations are presented. 

Putting forward unfounded allegations risks the respondent becoming upset or uncooperative, and may also make it difficult to narrow the key issues to be investigated. These things may increase the time it takes to investigate the matter. 

Another problem is that the employer is putting forward allegations without being aware of all the circumstances leading to the alleged conduct. This may undermine the investigation process – if new information later comes to light, the respondent has not had an opportunity to address it. This puts the reliability of the investigation under threat for lack of procedural fairness.

The employer could recall the respondent at a later stage in the investigation, but in the interests of fairness to the respondent and cost efficiency to the business, it is always a better course to interview each person just once. 

Another issue is the potential conduct of the respondent after being interviewed. If the allegations are denied, there may be a risk that evidence is tampered with or destroyed, or witnesses are colluded with or threatened. If you have already collected the evidence, there is less risk of this happening. 

The need for a strategy

When it comes to the timing of interviewing a respondent, there is no uniform answer for every situation. The best approach is to design a strategy to fit the circumstances. This is just one of the reasons why workplace investigations can be complicated and difficult. With experience comes increased knowledge, which is why workplace consultants are invaluable in navigating you and your organisation through the process.

WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
Location: Melbourne
Date: 1-3 December

Getting the Knives Out - Does the Punishment Fit the Crime?

Harriet Witchell - Monday, November 16, 2015
Employees and Charges

When an employee is charged with a criminal offence, there can be a number of complications for the employer. For example, whether the employee is a fit and proper person to work in the organisation, whether they present a risk to the safety of other employees, and whether there might be negative publicity if they continue in their employment. A recent decision of the Fair Work Commission (FWC) has laid down some basic considerations for businesses dealing with such issues. 

A case in point

In James Deeth v Milly Hill Pty Ltd, the FWC considered whether Deeth had been unfairly dismissed and whether Milly Hill had failed to properly apply the requirements of the Small Business Fair Dismissal Code

Milly Hill is a meat supplier, employing fewer than 15 people. Deeth was a final-year apprentice employed by Milly Hill. Deeth was charged as an accessory after the fact to murder. 

The person charged with the murder was under the age of 18, and so could not be named in media reports. Deeth, on the other hand, was named as an alleged offender and this caused Milly Hill concern that there would be significant publicity issues. Deeth was summarily dismissed from his employment for two reasons. 

If Deeth continued to be employed:

  • Milly Hill was concerned that other employees would resign out of fears for their own safety.
  • Customers would boycott Milly Hill’s retail business.
Application of the code

Milly Hill satisfied the definition of a small business employer, which meant that the code’s provisions would apply. The code provides that a dismissal of an employee by a small business employer is fair if the requirements of the code have been followed.

The FWC applied the code’s two-step test for appropriate summary dismissal:

  1. Whether Milly Hill believed that Deeth’s conduct was sufficiently serious to justify immediate dismissal.
  2. Whether that belief was reasonable.
The FWC findings

The FWC found that Milly Hill had a “knee-jerk” reaction to the charges, “fuelled by reports of customer and employee dissatisfaction.” The FWC accepted that Milly Hill believed that Deeth’s conduct was sufficiently serious, but its belief was not reasonable, because it had failed to properly investigate the matter. It was not necessary for Milly Hill to determine whether the crime had been committed, but rather how Deeth’s conduct impacted on the business. 

The FWC also said that an out-of-work-hours criminal charge was not alone a valid reason to dismiss – there must be a connection between the criminal activity and the employment. Because Deeth had threatened aggression leading up to the charge and because he worked with sharp knives, the FWC accepted that Milly Hill had cause for concern. The FWC found that there was a valid reason to terminate Deeth’s employment, but that the termination was harsh because the lack of investigation denied Deeth procedural fairness. 

Further, Milly Hill had not properly considered whether it might be able to keep Deeth on and “still have mitigated the perceived risks in relation to its employees and customers.”

The FWC awarded Deeth six weeks of wages as compensation. 

The lessons to be learnt

The presumption of innocence applies, even in civil situations. Employers are duty bound to provide safe workplaces and are entitled to mitigate damage to their businesses. But no matter how large or small, they also have a duty to properly investigate matters, especially when dismissal may result. Had Milly Hill reached the same conclusion after a proper investigation, it is likely that the FWC would have found in favour of the employer. This is reinforced by the case of Turton v Treblec Pty Ltd, in which a company with just four employees was found to have insufficiently investigated a matter prior to dismissing an employee. If you are considering terminating an employee or need assistance with a workplace investigation, WISE Workplace can offer expert assistance

WISE Workplace provides expert investigators to help conduct investigations into complaints of bullying and harassment as well as a variety of training courses to assist organisations to prevent and respond to complaints.  See below for upcoming course dates.
Call us now on 1300 580 685 to get $400 off the advertised price!

Location: Melbourne
Date: 1-3 December

Another Dimension to the Standard Of Proof?

Harriet Witchell - Monday, August 31, 2015
Another Dimension to the Standard Of Proof?

It is not uncommon that following a workplace investigation, the former employee raises allegations that the process was procedurally flawed. In addition to considering the investigation process, we need to be aware that the standard of proof used to make any findings may be called into question. In other words, although the investigator may have followed all the appropriate steps, the findings themselves may not be sound.

The case law

The standard we are (hopefully) familiar with is found in Briginshaw v Briginshaw. In this matter, his Honour made it plain that before accepting the truth of evidence of a particular allegation, there is a need to consider the nature of the allegation and the likely consequences that will follow should an adverse finding be made.

The legislation

The standard of proof required is laid out in the Evidence Act 1995, where we are told that: 

  • In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. 
  • Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: 
a. the nature of the cause of action or defence; and
b. the nature of the subject-matter of the proceeding; and
c. the gravity of the matters alleged. 
What is the new dimension?
Bartlett v Australia & New Zealand Banking Group Limited [2014] NSW SC 1662 relates to the termination of a senior executive’s appointment without notice for serious misconduct. In brief, an email sent to a journalist was doctored with the addition of a number of false statements. 

The (now former) employee sued ANZ for damages for breach of contract alleging that he was not guilty of serious misconduct and therefore that ANZ was not entitled to terminate his employment without notice.   

ANZ argued that it was entitled to terminate the employee's employment without notice, since such conduct would amount to serious misconduct within the meaning of a clause of the contract. 

The clause that ANZ relied on was: 

  • b. ANZ may terminate your employment at any time, if, in the opinion of ANZ, you engage in serious misconduct, serious neglect of duty, or serious breach of any terms of this employment agreement… 

The words "in the opinion of ANZ" mean that the underlying fact is not the determining matter but whether, in the opinion of ANZ, the employee was guilty of serious misconduct. In this instance, it was found that ANZ was entitled to dismiss the employee.

What does this mean?

When conducting a workplace investigation, the employment contract and any relevant policy and procedure wording should be reviewed to identify any provisions which may bear upon the appropriate standard of proof to be applied. The ANZ case also enables the employer to draft employment contracts, policies and procedures to set their own standard of proof in respect of termination clauses and other procedural matters.

WISE Workplace provides training courses and masterclasses in investigations for HR practitioners, workplace investigators and managers.  Our courses are designed and taught by investigators specifically designed for those engaged in the investigation of workplace misconduct including bullying and harassment.  See below for upcoming course dates.

(Articulates with Cert IV in Government Investigations)

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October

Focusing on Quality in Workplace Investigations

Harriet Witchell - Monday, August 17, 2015
Avoiding Pitfalls in Workplace Investigations

Choosing an investigator to conduct your workplace investigation can be a complex task. Do you look internally or externally? What are the features of a high-quality workplace investigator? And what common problems can arise along the way? Common issues that employers should consider include:

  • How confidentiality and fairness are to be balanced. 
  • How quality will be assured without undue cost. 
  • How and when information will be communicated throughout the workplace investigation. 

Establishing end-to-end quality in your workplace investigation can save considerable time and resources down the track. It is far better to plan well prior to an investigation, than to find yourself with an investigation outcome that is more harmful than helpful.

Confidentiality versus procedural fairness

Right at the start of any workplace investigation, it is vital that all parties understand the nuances and limits of confidentiality. While it can be tempting to invite witnesses to ‘speak freely’, can you be confident about the extent to which information is, in fact, protected? Employers can at times believe that their lawyers have certain communications ‘under wraps’ via legal professional privilege. Yet some workplace investigators have learned the hard way that such assurances can be dangerously hollow. Despite some employers depending upon lawyers to conduct the ‘best’ investigation, it can often be the case that a specialised workplace investigator will more readily understand the particular nuances of the confidentiality/ fairness divide.

A related factor complicating the confidentiality issue is the need for rigorous adherence to the principles of procedural fairness throughout the workplace investigation. If a party is unfairly prevented from accessing and responding to adverse material relevant to their situation for example, procedural fairness might well be lost. Understanding and communicating the requirements of procedural fairness are core elements of the investigator’s role.

Cost versus quality

It is certainly understandable that business owners wish to have workplace investigations finished quickly and efficiently. An internal solution can seem ideal - you don’t have to lose valuable time and money explaining the environment, systems and personnel to your internal investigator. As with many ‘simple’ options however, there are particular pitfalls to consider. Consciously or not, an internal investigator might be pressured to support particular interests – including the employer’s, the complainant’s or those of certain colleagues. Such a slant can unfortunately lead to investigative outcomes that fail the test of procedural fairness. 

A related problem can be the continuous use of the same ‘reliable’ external service provider. A better strategy for quality investigations is to utilise a number of external investigators. Reports and outcomes thus have a greater chance of reflecting true independence.

Clear communication

An experienced and professional workplace investigator will have a solid communication strategy in place for the duration of the investigation. Avoid selecting an investigator who cannot clearly describe the investigative process in terms of available communication channels, plus the key delivery dates for investigation outcomes. 

Such outcomes can include the draft investigation report, feedback options and the final report. An astute workplace investigator knows how to employ flexibility in communication – without jeopardising the overall fairness of the process. Professionals in the field understand the importance of accessibility without bias. If an employer, complainant or other party attempts to exert undue influence over proceedings, an investigator must be able to clearly delineate and communicate appropriate boundaries.

Education is power

It can be counterproductive to simply criticise employers who decide to conduct internal workplace investigations themselves. For workplaces where the nature and pitfalls of workplace investigations are well-understood, an internal investigation might in fact be an adequate solution. With appropriate education and assistance, there is room for workplace investigations to be carried out well in-house.

Where a work situation is complex and/or fraught with issues however, an external professional investigator might be the safer option. If this is the option taken, employers should vet potential investigators about their proven record in conducting high-quality workplace investigations. With solid research and planning, employers can build a solid defence against the pitfalls of workplace investigations.

Overstepping the Mark

Harriet Witchell - Monday, June 29, 2015
Overstepping the mark
Overstepping the Mark: When Unions Fail to Protect Workers
In our last post, we looked at the importance of properly investigating allegations in the case of Amiatu and Others v Toll Ipec Pty Ltd. This case is also a significant commentary on union representation, and what can happen when a union official oversteps the mark. Even though unions are charged with acting in employees’ best interests, there can also be negative repercussions for employers if unions act without authority. 

In the Toll case, three employees had discovered an open box containing Toll safety uniforms. They put on some of the uniforms, going about their normal duties and making no attempt to cover up having taken them. When the company became aware that the workers had taken the uniforms, it informed the union that it believed that the employees had committed theft and that it intended to terminate their employment and report the matter to the police. The union organiser persuaded Toll to allow the employees to resign. 

The employees had been filmed by surveillance cameras. When the employees raised the possibility of an unfair dismissal claim, the official told them that the video evidence was far too strong, and that they had “no hope” of succeeding.The official then assisted them to write out their letters of resignation. The employees subsequently made a claim for unfair dismissal in the Fair Work Commission (FWC).

The FWC findings

The FWC found that the union official had made the deal with the company without the employees’ authorisation. The company had agreed, and then the official met with the workers, saying that their two options were to resign or to be sacked and face police involvement. The commission also found that they had been coerced into resignation by this threat of police involvement and poor future work prospects. There had been no intention by the workers to steal the uniforms. Reprimands or warnings would have been more appropriate disciplinary action. 

The FWC was concerned that the union had so strongly encouraged the employees to resign when they had done nothing wrong. This effectively deprived them of adequate representation. The union official “was acting as an advocate of a proposed course of action which he had invented and which had been negotiated by him, accepted and agreed by Toll, in Toll’s best interests.” But the union official’s duty was to act in the best interests of the workers. 

Employers beware

This case serves as a warning to employers to tread very carefully when dealing with union involvement in disciplinary matters. The FWC made it very clear that the official had overstepped the union’s authority in negotiating an outcome for the employees before even discussing it with them. He was so swayed by the video footage and the threat of police involvement that he forgot the crucial steps of getting the employees’ version of events, assessing the evidence and acting in their best interests. This approach also caused another significant problem – Toll reasonably thought that it had negotiated an outcome because it was dealing with the employees’ representative, only to discover that the employees were taking legal action. 

The lesson for employers is to be very cautious about negotiating a matter with a union when the employee is not present. Any agreement made should be checked with the employee to ensure the employee is making the decision freely. Employers should be careful not to say or do anything that might later be construed as having pressured the employee to make their decision, for example, a threat to make a police report. As the FWC noted, “It would have been open to [the company] to simply advise [the union official] that the Applicants could make up their own minds whether to resign their employment.”  

This simple step may have allowed the company to successfully defend the unfair dismissal claim. When unions overstep the mark, there can be difficult and expensive ramifications for the employer. When in doubt about how to negotiate with a union, we recommend seeking the help of an experienced workplace consultant.

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