Sacked on Leave: Procedural Fairness and Unfair Dismissal

Natasha Kennedy-Read and Vince Scopelliti - Wednesday, February 19, 2020

The rules around when staff can be terminated while they are on leave can be a source of consternation for management and human resources professionals. 

The consequences of getting it wrong are demonstrated in the recent Fair Work Commission decision of Tuan Nguyen v Adelaide Fencing and Steel Supplies Pty Ltd [2020] FWC 79 (30 January 2020). 

In this case, the employer was ordered to pay compensation to an employee deemed to have been unfairly terminated. 

The Facts of the matter

Mr Nguyen was a business manager for Adelaide Fencing and Steel Supplies who was dismissed from his employment following allegations of fraud and dishonesty associated with the supply of products to a customer. 

Following his termination, he lodged an application for unfair dismissal, arguing that the seriousness of the allegations levelled against him were not supported by the available evidence. 

Although the Commission found that there was legitimate cause for concern about Mr Nguyen’s reckless conduct, and he had been validly terminated, it was ultimately held that due process had not been followed in effecting the termination. 

This was because Mr Nguyen was found not to have been given prior warning or a “genuine opportunity” to deal with the serious substance of the allegations, particularly given as Mr Nguyen was on extended sick leave at the time of the termination. 

Accordingly, the dismissal was found to have been harsh, unreasonable and unfair, with the Commission ordering compensation in the sum of $10,000. 

key lessons employers can learn

Employers should take note of a few key principles which underpinned the decision in Nguyen, namely:

  • The Commission expects employers to provide a “fair go all round”. In practice, this means that decisions in relation to employment status cannot be made arbitrarily. Instead, they must take into account a balanced, practical and common sense method to ensure that both the employer and the employee are treated fairly. Notably, this includes an opportunity to respond to allegations made against the employee by the business.
  • Procedural fairness is king. Although it is certainly understandable that employers wish to exit staff who are underperforming or otherwise breaching workplace practices or even the law as expeditiously as possible, there is no excuse to “rush” the process, at the cost of following due process. This means providing employees with clearly articulated warnings, notice of the reasons for dismissal, ensuring a legitimate and practical opportunity has been given for them to respond, and permitting the employee to have a support person of their choosing attend any interviews. 
  • In addition, objectivity is crucial. When making decisions as to ongoing employment, it is essential that the results of any investigation can stand up to objective standards of evidence, and will not be undermined by allegations of subjectivity or bias. 
  • Take your time. Unless there are urgent reasons to immediately terminate employees (such as serious criminal activity), there is no benefit in terminating too quickly. This is especially the case when employees are on sick leave, as in most cases the Commission will determine that due process has not been followed in dealing with those staff. 
  • Engage in performance management early. Although there may be a concern that a documented performance management process will further alienate an unhappy or recalcitrant employee, engaging in this process at appropriate times and in a correct fashion will bolster any ultimate termination, should this become necessary. It also affords the employer a reasonable management defence when challenged. 
In unfair dismissal claims, the Commission will prioritise “a fair go all round” and not hesitate to find in favour of an applicant (notwithstanding that they may have engaged in legitimate misconduct) if procedural fairness is not followed. To ensure procedural fairness when dealing with misconduct, contact WISE for resources, expert advice and independent, unbiased investigation services.


How to Navigate Counter Allegations in Investigations

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

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

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

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

Divide ALLEGATIONS into separate incidents

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

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

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

keep procedural fairness top of mind 

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

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

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

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

The civil standard of proof

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

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

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

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

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

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

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



Responding to Bad Behaviour at the Christmas Party

Vince Scopelliti - Wednesday, November 27, 2019

It's no secret that both the good and the bad can be on display at the annual work Christmas party. While smiles and good cheer can and should be the main features at an end-of-year bash, some unfortunate behaviour can also arise. 

Alcohol abuse, sexual harassment and aggressive behaviour are just some of the less savoury possibilities. But despite the instinct to punish personnel who wander astray, it is vital that employers respond to Christmas misbehaviour in a manner which is both reasonable and proportionate.

Alcohol abuse/intoxication

For many workers and business owners, the idea of a Christmas party with zero alcohol is a rather bleak one. Secret Santa, sausage rolls and a few cool beverages tend to be part of the workplace festive tradition. Yet the results of intoxication at the work Christmas party are the stuff of unfortunate legend. Raised voices, wild dancing, lewd comments, recriminations and unwanted advances are just some of the potential products of the wrong mix of drinks.

Moderation is everything when it comes to the supply of alcohol at the end-of-year event. Plenty of forewarning to staff about rules and refreshments will also help to keep proceedings on an even keel.

sexual harassment

The well-known reduction of inhibitions caused by alcohol consumption can lead to one of the more serious Christmas party side-effects: sexual harassment. The working year is over, the relief is palpable and perhaps a perceived flirtation is taken in an unacceptable direction. Behaviour that would certainly be shunned in the ordinary workplace can seem 'up for grabs' in the glittery glow of the Christmas party lights.

Alcohol can of course be part of the unacceptable sexual harassment situation: yet sometimes just the high spirits of the Christmas party itself can lead to an array of unacceptable approaches and behaviours.

Aggressive behaviour 

As with misconceived flirtation, the office Christmas party can bring out the worst forms of aggressive behaviour. Personal tensions can simmer during the year, with the relief of the office party creating an unleashing of built-up emotion. Add alcohol to the mix, and there is a strong possibility that arguments, fights and even assaults will emerge.

Case study - keeping things proportionate 

The case of Keenan v Leighton Boral NSW Pty Ltd [2015] FWC 3156 reflects the need to act swiftly in response to Christmas party problems - yet to do so in a fair and measured way.

In this case, the Fair Work Commission was faced with the troubling situation of an employee becoming intoxicated and proceeding to swear, abuse and provide unwanted advances through the night. He was dismissed. However, the worker's excellent work record, combined with the employer's dubious provision of free-flowing alcohol, saw Keenan's dismissal overturned by the FWC.

In particular, it was noted that any disciplinary action needed to be reasonable and proportionate to the condemned behaviour. The limitless alcohol situation certainly did little to assist the employer's case. And while the employee's drunken behaviour was a nightmare of ill-conceived comments, actions and insults, the FWC noted that his long and notable record of service required the employer to be reasonable in response.

It is certainly a cautionary tale to employers supplying alcohol at Christmas parties. If no limits are placed upon the type and volume of alcohol consumed by workers across time, then a large part of the fault in such cases will no doubt be seen to rest with employers.

managing the christmas party risks 

When it comes to organising the annual Christmas party, it pays for employers to plan the event well in advance. All employees should be aware of the order of proceedings, times and expectations at the party. Employers should plan food and alcohol extremely well, working out how the judicious service of alcohol will be managed through the night.

Providing security staff on the night can also be an excellent way to keep emotions and good cheer under some sort of control!

The Keenan case certainly demonstrates the importance of undertaking a thorough and considered investigation before taking serious disciplinary action against an employee. In unfair dismissal claims, the Commission will not hesitate to find in favour of the applicant where the employer failed to apply proportionate disciplinary action. If you would like to ensure your investigation process is considered and enforceable, WISE provides full and supported investigation services, as well as investigation training for your staff. 

How to Take Action when Employees and Alcohol Mix

Vince Scopelliti - Wednesday, March 27, 2019

Alcohol and workplaces never mix well. No matter the sort of work they do, employees should not be in the workplace when they are under the influence or still suffering the effects of alcohol consumption. This includes drinking at work or immediately before starting work, and those who are still impacted by a big night out. 

So what steps should an employer take when dealing with a worker who they suspect is intoxicated in the office?

approaching an intoxicated employee

Occupational health and safety legislation throughout Australia places an obligation on employers to protect not only the safety of the intoxicated employee, but that of all other employees as well. 

This means making sure that an intoxicated employee can't hurt themselves or anyone else. Accordingly, employers have an obligation to approach intoxicated employees and ask them to leave work immediately (without driving a vehicle, of course!). 

However, being intoxicated at work does not necessarily mean that employees can be terminated immediately. When determining whether a dismissal for intoxication in the workplace is 'valid' or can be upheld, courts will consider several factors. These include whether the company's drug and alcohol policy or any contractual arrangements in place with the employee are sufficiently clear to demonstrate that there is a 'zero tolerance' policy for alcohol in the workplace. 

Although employees should certainly be disciplined for being intoxicated at work, employers who are wishing to avoid claims for unfair dismissal should consider interim steps such as clearly worded warnings rather than summarily dismissing staff.

factors that may contribute to alcohol abuse

Of course, prevention is always better than cure. Employers should give some thought to factors that may encourage their staff to over-indulge in alcohol to the extent that they are intoxicated in the workplace. 

Key risk factors include:

  • Age, gender and socio-economics. According to the Alcohol.Think Again campaign, young men who work in lower skilled or manual occupations are statistically most likely to be involved in 'risky drinking'.
  • Isolation (geographical isolation or social isolation within work peer groups)
  • Bullying, harassment and other interpersonal difficulties
  • Poor supervision, or support in the workplace
  • Difficult working conditions
  • High levels of stress 

How alcohol use can impact the workplace

An intoxicated employee can pose a risk to the safety of themselves and others. This is magnified when the employee is in a customer-facing role, or they are required to do manual work involving precision or machinery. 

Regardless of the nature of the work however, job performance can suffer as a result of the poor concentration and low productivity that will likely result from intoxication.

Steps to address alcohol use in the workplace

In addition to mitigating workplace risk factors, employers should ensure that they have clear and detailed drug and alcohol policies which identify under what conditions an employee would be determined to be 'intoxicated'. Policies should also clearly spell out the consequences of breaching those conditions. 

Employers must ensure that any breaches of the policy are thoroughly and objectively investigated, and any required disciplinary action is taken swiftly. 

If you would like to know more about risk management and creating effective drug and alcohol policies, or you require assistance with investigating an incident involving an intoxicated employee, contact WISE today.

Work Christmas Parties: 3 Tips for a Fun Festive Function

Vince Scopelliti - Wednesday, November 14, 2018

It's the end of a long year. Employers and staff alike have worked hard and are looking forward to the opportunity to catch up, celebrate, network and relax.

The work Christmas party is often anticipated as an ideal way to farewell the working year, reward staff, and anticipate the year ahead. However, employers must understand that a successful - and incident-free - Christmas party is dependent upon good planning and a sound understanding of the unique risks of work-related events. 

We provide our three best tips for ensuring a fun, safe and low-risk festive event. 

1. uNDERSTAND YOUR UNIQUE OBLIGATIONS 

One unfortunate mistake that we see in December is employers putting on a 'knees up' for staff without fully understanding the obligations involved. Importantly, it is not only parties held in the workplace that require careful consideration of an employer's legal obligations to staff. Festive functions that are off-site, yet employer sanctioned generally attract the full suite of workplace legalities. Required attendance or strong encouragement to attend, combined with free catering and in-built networking opportunities can all indicate that the Christmas party is indeed a work-related event, wherever it might be held.

Workplace safety usually brings to mind ideas of trip hazards and work station alignment. However, when it comes to the work Christmas party, some hazards are very particular. An open bar is a definite no-no. While some staff might groan about the lack of generosity, the relationship between alcohol and poor Christmas party behaviour is well-documented. It is no laughing matter for those employers who are faced with issues of alleged harassment, staff abuse and injury to workers in the wake of a Christmas 'cracker'.

2. Prepare, Prepare and prepare!

Clear communication to all staff about the nature of the upcoming Christmas party is essential. Without seeming like a kill-joy, it is important to outline in writing the expected behaviour of staff, venue rules and general housekeeping such as the end time of both the bar tab and the function itself. A good idea is to build a basic run-sheet into the invitation. Indicate a start time, any speeches and awards, food presentation, bar hours and offerings and close of proceedings. Preparing staff mentally beforehand will discourage untoward behaviour. 

The importance of limiting alcohol and providing professional function staff at Christmas parties was made painfully clear in the recent case of Sione Vai v Aldi Stores. An inebriated worker became extremely agitated when refused service of alcohol by a responsible bar worker. 

As part of his inappropriate and drunken behaviour, the employee threw a full glass of beer towards a security officer, which sprayed co-workers before smashing into a lamp. He was later dismissed. In appealing this decision, the worker claimed that he lost his job as a direct result of this employer-sanctioned party. 

However, Commissioner David Gregory considered that the provision of professional security and bar staff - trained in Responsible Service of Alcohol (RSA) - as well as a limited supply of alcohol all indicated that the employer had acted with care and diligence. The dismissal was upheld. 

3. respond swiftly to christmas party incidents

As seen in the above case study, preparation and quick action at the time of the function is essential. The aftermath of the party is also a crucial time to consider any necessary responses to incidents that come to light, whether by rumour or direct report. Unfortunately, sexual harassment, verbal abuse, alcohol-related injuries and culturally inappropriate behaviour can all rear their ugly heads at the very function that is designed to foster fun, camaraderie, reflection and unity. Employers should swiftly respond to any Christmas party incidents, ensuring that matters are investigated in a fair, professional and transparent manner. 

decking the halls (safely!)

Equipped with a strong understanding of legal obligations, some sound preparation and prompt responses to any incidents, employers can create a Christmas party that is enjoyable, safe and memorable for all the right reasons. 

If you need assistance to prepare for your Christmas party, or dealing with any issues, which arise from the Christmas party, contact WISE for assistance

Workplace Party Pitfalls and Perils (A Christmas Story)

Vince Scopelliti - Wednesday, November 15, 2017

At a time when workers increasingly work remotely, communicate online or use hot desks, the annual staff Christmas party is a valuable opportunity to get everyone interacting face to face. 

A Christmas party is also a good way of getting staff who rarely see one another during the working week to meet, to reward staff for hard work, to celebrate the success of the past year, and to motivate employees for the year ahead. 

At the same time, it is essential that reasonable steps are taken to manage the risk to the organisation's reputation, to provide an environment free from discrimination and to protect the health and safety of all involved in the Christmas party. 

Small wonder then that there is a fine line between potentially permitting a situation to get out of hand, and being so risk averse that you kill the fun of the party altogether. 

Here's a quick guide for employees and employers on how to avoid the potential perils of the work Christmas party.

when is a party classed as a workplace event?

First, in order for a business to be legally liable for events that occur at a Christmas party, it must be considered a 'workplace event'. However, this can extend beyond something which is specifically labelled an 'end of year function' or 'Christmas party', and can include something as informal as a picnic or a sporting activity - or even an unplanned and spontaneous event like an after party. 

The factors that determine whether something is defined as a workplace event include:

  • Whether the employer sponsored or funded the event.
  • If the employer was involved in organising the event or issued invitations.
  • Whether attendance was voluntary or whether the employer expected attendance - for example, by requiring employees who did not attend to take annual leave or work instead. 
  • If employees consider it a 'perk' of employment to attend the event.
  • Whether the employer benefitted from the event, for example by having the opportunity to present awards or network with clients.  

SO HOW CAN THINGS GO WRONG?

Some notable mishaps from past Christmas parties include: 

  • The dismissal of an employee for haranguing and then pushing a fully clothed co-worker into a swimming pool. That decision was upheld by the Fair Work Commission, despite noting that the employer should not have provided virtually unlimited alcohol. Another factor was that the employee was asked to leave by the general manager, but refused to do so, engaging in a physical altercation with him. 
  • An employee urinating off a balcony on Darling Harbour onto dining patrons below was sacked for misconduct. 
  • A formal warning was given to a police officer who used a genital piercing to open beer bottles during a party. 
  • Another employee lost his job after faking his wife's illness to miss his own Christmas party - only to attend that of a competitor.   

how employees can have fun and stay out of trouble

There are a few important things employees should be aware of: 

  • What happens at the party will almost certainly not stay at the party. Quite apart from water-cooler gossip and the potential repercussions of people remembering what you said or did after that fifth glass of wine, there's also potential for humiliating photographs or embarrassing posts to be shared on social media. 
  • Employees should set and stick to limits. Good working relationships can be quickly destroyed, and respect lost, through foolish or careless behaviour by those who have over-imbibed. 
  • Once your reputation has been damaged, it can be incredibly difficult to repair it. Remember that you will need to see your colleagues and any other guests again - if not on Monday, certainly after the Christmas break. 

Instead of overdoing the alcohol, use the party as an opportunity to network with other people in your organisation whom you may not know as well. The Christmas party should be an opportunity to have fun and form more personal connections, with a view to improving your overall work life.

WHAT EMPLOYERS MUST DO

In order to minimise any potential pitfalls from the Christmas party, employers need to know a few key things:

  • If a function is deemed to be a workplace event, then the employer owes a duty of care to employees. This includes being held vicariously responsible for any injuries, discrimination, harassment, or potentially for anything the employees do wrong, such as breakages. 
  • Service of alcohol is the responsibility of the employer. Although employees should feel free to have a good time without undue restrictions, it is up to the employer to ensure that nobody is excessively intoxicated. Some employers may also wish to provide alternative transport home, such as Cabcharge vouchers. 
  • Employers should make it clear exactly when the function starts and finishes. Setting a specific end time for the festivities assists with limiting the employer's duty of care to a finite window, after which point anything that happens at a different venue could be considered to be 'off the clock'. 
  • Employees should be reminded that, even though the event may not be held at the workplace, the usual rules of conduct apply. This includes reminding employees of the company's sexual harassment, bullying and anti-discrimination policies. 
  • Remind employees to be culturally sensitive, especially noting that not all people celebrate Christmas, and ensure that any gifts sanctioned at the workplace event, such as Secret Santa, are not inappropriate or offensive. 

How to deal with any misconduct 

If something does go wrong at the Christmas party, it is important for employers to deal with potential misconduct swiftly and fairly in order to minimise any fallout. WISE Workplace can assist with a professional and unbiased workplace investigation.