Mitigating Factors and Dismissal - What is Relevant?

- 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

- 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!  

Another Dimension to the Standard Of Proof?

- 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.


NEED A SPECIALIST?  ENGAGE AN EXPERT
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.

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Protecting Casual Workers

- Monday, August 03, 2015
Casual employees and discrimination
Have Casuals? Discrimination and Unlawful Dismissal DO Apply

There are huge benefits to employers in having a workforce of casual employees. There’s no need to worry about leave entitlements, work hours can be changed at short notice, and it’s easy to shed or add staff depending on the needs of the business. Indeed, casualisation has revolutionised the modern workforce in many ways. But a serious issue arises when employers treat casual workers as expendable, for example if a casual worker’s employment is terminated for discriminatory reasons. 

Discrimination in employment

Discrimination in the workplace occurs when an employee or potential employee is treated unfavourably on the basis of: 

  • Race
  • Colour
  • Gender
  • Sexual preference
  • Age
  • Physical or mental disability
  • Marital status
  • Family or carer’s responsibilities
  • Pregnancy
  • Religion
  • Political opinion 
  • National extraction or social origin

The Fair Work Act prohibits employers from taking adverse action against employees for discriminatory reasons. Adverse action can include termination of employment, altering an employee’s position to their detriment or refusing to employ a prospective employee. Termination of employment for discriminatory reasons is known as unlawful dismissal. Significantly, the Act does not distinguish between large or small employers. 

Any employer, regardless of how big or small, is prohibited from engaging in discriminatory conduct. Additionally, the Act prohibits discrimination against any employee or prospective employee.That means that employers cannot discriminate against casual employees.

Casual employment conditions

If a casual employee’s employment is terminated for discriminatory reasons, they can take action for unlawful dismissal under the Fair Work Act, provided that they have:

  • Worked for the employer on a regular and systematic basis.
  • A reasonable expectation of continuing employment.
  • Been employed for a minimum of six or 12 months (depending on the size of the organisation). 

For example, an employee who for 14 months worked regular days and hours for a store suddenly had her hours cut by 50 per cent. When she asked why, she was told by management that it was felt that someone younger would bring in more sales. 

In this case, the employer may have thought to rely on the employee’s casual employment status to make a tough decision. But in reality, the employer discriminated against the employee on the basis of her age. The employee could make a complaint to the Fair Work Ombudsman to have her hours restored. If the employee felt compelled to resign because the severe reduction in her hours had made her position untenable, she may make a claim of unlawful dismissal in the Fair Work Commission. She may argue that she was constructively dismissed – that she had no other option but to resign – and rely on the regularity and length of her employment to meet the jurisdictional requirements of the commission. 

Even if the employee doesn’t meet the commission’s jurisdictional requirements, she may choose to take action elsewhere, for example under state anti-discrimination or equal opportunity legislation (legislation varies from state to state), or make a complaint to the Australian Human Rights Commission under the Australian Human Rights Commission Act and the Age Discrimination Act.

The implications for employers

 It is important for employers to realise that despite the highly flexible nature of casual employment, casual employees can still exercise their rights under state or federal legislation, even if they have no jurisdiction to bring an action under the Fair Work Act. And if a casual employee is out of work due to an act of discrimination, there may be nothing to stop them from making a complaint. A complaint of discrimination by an employee (or former employee) will impact on an employer. Valuable time will be spent investigating the complaint, and legal expertise may be required to defend the complaint – a costly undertaking. Workplace practices and procedures may also need to be reviewed in light of the allegations. Steering clear of discrimination is a far more cost-effective way to operate a business, and employers should send a strong message to all staff that discrimination is not to be tolerated. 

NEED A SPECIALIST?  ENGAGE AN EXPERT
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.

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Date: 5-7 August

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October



6 easy steps to avoid drunken workers

- Monday, July 13, 2015
The perils of the office Christmas Party
The perils of the office Christmas Party

The office Christmas party. It’s a time of celebration, and an acknowledgement of all the hard work done by the team over the year. So what could possibly go wrong? Plenty for employers, as the recent decision in Keenan v Leighton Boral Amey Joint Venture demonstrates, especially when the alcohol is free-flowing. 

A Christmas party to remember

In a decision which just may have employers re-thinking the bar arrangements at the annual do this year, the Fair Work Commission (FWC) considered the termination of a worker’s employment following his behaviour at the office Christmas party. Although the employer had issued a reminder to staff to behave responsibly, Mr Keenan consumed two beers prior to attending the event, and in the course of the evening, consumed another 10 beers and a vodka and coke. Wait staff were serving drinks, but later in the evening, guests could help themselves to alcohol. During the party, Mr Keenan told his boss to “f___ off” and remarked to another colleague “who the f¬¬¬¬___ are you? What do you even do here?” When the party ended, Mr Keenan and some other employees moved to another part of the hotel and continued drinking. There were further incidents which included calling a co-worker a “stuck-up bitch,” kissing another co-worker without warning or consent, and some other comments with sexual overtones. Following an investigation, Mr Keenan’s employment was terminated. Mr Keenan claimed unfair dismissal.

The FWC findings

The FWC found that Mr Keenan had been unfairly dismissed. The after-party incidents were not in connection with his employment, as they were not sanctioned or organised by the employer. Mr Keenan’s conduct during the party was not so serious to warrant termination of employment. The FWC said that the incidents were isolated, and that generally he had a fairly good employment record.

The service of alcohol

Key to this decision were the comments about the service of alcohol at the party. “It is contradictory and self-defeating for an employer to require compliance with its usual standards of behaviour at a function but at the same time to allow the unlimited service of free alcohol at the function,” the FWC said. The FWC said that the venue had agreed to refuse service to anyone thought to be intoxicated. Mr Keenan was not refused a drink by wait staff and was not prevented from helping himself to beer later in the evening. No one with managerial authority was made responsible for ensuring the smooth conduct of the function.

Effects of the decision

This decision will cause some problems for employers, especially as Christmas season approaches. Employers can be in a difficult spot when it comes to office functions and Christmas parties in particular, as many employees expect and look forward to the annual party and judge their employer by the quality of the party (including the amount of alcohol served).  

But there are a number of things an employer can do to avoid difficulties with drunken workers: 

  • Prior to the party, remind staff of the organisation’s policies on sexual harassment, occupational health and safety and showing respect for other workers. 
  • Remind staff that they are to conduct themselves appropriately at the party as it is a work function.  
  • Consider service of drinks for a limited period, for example two hours. 
  • Do not allow self-service of drinks at any stage in the evening. Ensure the venue will refuse service of drinks to anyone who is intoxicated and make sure the venue has adequate security staff to remove any employees who are behaving offensively.
  • Ensure there are at least two senior staff members overseeing the smooth running of the event.
  • Consider organising and funding transport for staff to leave the venue as soon as the function is over.

Mixing work and alcohol is always a difficult undertaking, and employers need to carefully plan work functions to avoid the difficulties faced in the Keenan case. But with good management, the traditional Christmas party is still a possibility, even if it might be a little more subdued!

Overstepping the Mark

- 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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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.
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Date: 22-23 July 2015

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It's not always Black and White…...

- Monday, June 22, 2015
Think Employee Behaviour is Black and White?
Think Employee Behaviour is Black and White?
Sometimes, workplace incidents can seem straightforward to an employer – an employee has done something wrong, and action should be taken. But two recent cases before the Fair Work Commission (FWC) demonstrate the importance of properly investigating a matter and relying on sound evidence before taking action against an employee, and making sure that the action is an appropriate response.
Allegations of theft, and disproportionate action
In Amiatu and Others v Toll Ipec Pty Ltd, three employees took action against Toll for unfair dismissal. They came across an open box containing Toll safety uniforms. Surveillance cameras filmed them removing some of the uniforms and putting them on. They then went about their work. The following day, they worked their usual shifts, wearing the uniforms.

When Toll management became aware that the workers had taken the uniforms, it interviewed each of the workers and then spoke with the union delegate. Toll intended to terminate their employment for theft, and report the matter to the police. The union delegate persuaded Toll to allow the employees to resign, and convinced the employees to do so, despite their protests. The employees subsequently brought an action for unfair dismissal against Toll. 

The FWC found that they had been coerced into resignation by the threat of police involvement and poor future work prospects. The FWC also found that there had been no intention by the workers to steal the uniforms. They wore the uniforms in full view of other Toll staff and were also probably aware of the surveillance camera. They believed they had done nothing wrong, and had not made any attempts to cover up their actions. At worst, they had made an error in judgment by not following proper procedures to acquire the uniforms. Reprimands or warnings would have been more appropriate disciplinary action, the FWC found. 

Toll had failed to prove that theft had occurred. 

The FWC was also 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.

Although the FWC found no further significant issues with the investigation process, it would have been prudent for Toll to have conducted further interviews with each employee, with their representatives present, before any decisions were made about termination of employment and police involvement. 

The FWC found that the workers’ employment had been unfairly terminated and ordered their reinstatement.

The need for a proper investigation and sound evidence

In the case of Elton v Acupuncture Australia Pty Ltd, the FWC found that there was insufficient evidence to justify the termination of Ms Elton’s employment. 

Ms Elton worked for the employer (AA) in sales. Another employee had reported that she was behaving in a suspicious manner, printing out sales reports, rushing to the printer to collect them and then putting them in her handbag. AA looked into the matter, and found that a number of invoices had been deleted from the accounts system. AA terminated Ms Elton’s employment for engaging in “corporate theft and fraud involving cash, credit card, paypal and direct deposit.” It also accused her of acting with two former employees, and threatened to report the matter to the police.

Ms Elton denied the allegations and took action for unfair dismissal. The FWC accepted her explanation that she was printing out the reports to monitor her own performance. It also accepted that deleting invoices was a standard practice for cancelled orders, and that anyone could have done so. 

The FWC held that there was no evidence to suggest that Ms Elton had acted with the former employees, and that AA had failed to produce any evidence to support its claims of theft and fraud. Nor had AA made a police report. According to the findings, there were also issues with the investigation process, particularly that Ms Elton was not given a proper opportunity to respond to the allegations. Without warning, she was called to a meeting and the allegations were put to her. No documents were shown to her, either to justify the allegations or to seek her explanation. 

The FWC found that Elton had been unfairly dismissed. AA later appealed and the Full Bench of the FWC upheld the decision.
Implications for employers
These decisions demonstrate the need for employers to proceed with great care during investigations, especially ensuring that procedural fairness is adhered to every step of the way. Employers must also carefully assess the evidence against the allegations to ensure that there is enough proof to warrant disciplinary action. This can be challenging if the employer is very involved in the matter, as it can become difficult to make an impartial assessment .An experienced workplace investigator can be of great assistance in these situations, and it’s always a good idea to seek advice before a decision is made to terminate or discipline an employee.
NEED A SPECIALIST?  ENGAGE AN EXPERT
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
CONDUCTING WORKPLACE INVESTIGATIONS - ADVANCED
(Articulates with Cert IV in Government Investigations)

Location: Melbourne
Date: 5-7 August

Location: Brisbane
Date: 16-18 September

Location: Sydney
Date: 13-15 October






You're Fired! Tips for Exiting Employees Gracefully

- Tuesday, February 03, 2015
termination
You're Fired! Tips for Exiting Employees Gracefully

It's understandable that as a business owner and employer, certain members of your staff will occasionally take you to the edge of patience. Whether there are problems around lateness, poor output, unsafe practices or terrible attitude – there some staff members who you know will probably just have to go. When faced with a worker who you simply no longer want on your work floor, it pays to think through the best steps to take in particular circumstances. 

Conduct at the border
 As tempting as it can sometimes be, sacking someone in the heat of the moment can cause significant longer-term difficulties for many employers. While some extreme conduct will justify immediate dismissal, most situations will call for a more measured approach. So what sorts of misconduct could be described as ‘serious’? Unfortunately, due to the diverse and sometimes bizarre ways that humans can and do misbehave, there is no clear-cut list of every type of conduct relevant to employee dismissal decisions. Practically speaking, criminal activity such as theft, assault or fraud will in many cases justify immediate employer action. But there are also countless borderline cases of employee misconduct. Industrial courts and commissions have grappled with many of these across the years, with varying outcomes for employers. Experts in the field of industrial law are able to assist in gauging the right approach for your situation. 
Follow the path 
In most cases of unsatisfactory conduct on the part of an employee, the industrial relations system can provide helpful guidance on the correct process for dismissal. Current industrial law and applicable awards will often contain the steps that an employer needs to take prior to terminating the employment of a worker. Courts and commissions tend to take a dim view of instant dismissal without any prior warning, except in rare cases. Depending upon the worker’s job level, duties, and the type of misconduct, it is generally advisable for employers to have carried out clear and documented remedial actions, such as written warnings or transcribed meetings, prior to dismissal. 
Counting costs
It is not uncommon for an employer to decide to sack a worker on the spot, no matter what the consequences. Walking them to the gate can seem like a small price to pay for restoring the business to productivity and calm. The significant costs of such a decision can however come in a number of forms. For example, if the worker takes successful action against the employer for unfair dismissal, the business might well be forced to pay not just for quantified losses but for the legal costs of defence. Further, a wrongly dismissed worker might claim that they have suffered a psychological injury due to ‘unreasonable management action’ at the work site, particularly if heated words have been exchanged. Aside from visible costs, preparing defence materials and speaking to lawyers and claims managers can also extract time from the business that most employers simply can’t afford. 
A quiet word 
Sometimes it can take every ounce of restraint not to instantly ‘walk’ a worker whose conduct is seriously bad. And in certain cases, employers will need to do just that, for safety and legal reasons. In the alternative, it can pay to hold your fire and seek some advice on the issue. Talking the matter through with an expert in workplace matters does two things – it helps you vent your spleen to a third party, and it gives you the opportunity to find the best solution to this particular employee problem.

Is an Employee Obliged to Divulge Facts About Their Partner?

- Tuesday, October 07, 2014
Divulging information
is an employee obliged to divulge facts about their partner?

In a recent matter before the Fair Work Commission – Lakatos v Termicide Pest Control Pty Ltd – the short answer to the above proposition was ‘yes’. The employee, Ms Lakatos, refused at first instance to answer questions posed by her employer regarding her fiancé’s new employment. Her fiancé, Mr McKay, had in fact previously worked for Termicide. And as the owner of Termicide correctly suspected, Mr McKay was now working for a competitor in the pest control industry. Of particular concern to the employer was the possibility of threats to his business posed by Mr McKay’s position, including his access to confidential information. Eventually, Ms Lakatos provided the information about her fiancé’s new workplace, but was nevertheless dismissed. The Commission found that the employer possessed a valid reason for the dismissal. 

Keeping quiet

Senior Deputy President Richards’ finding that Ms Lakatos was obliged to provide an explanation about her partner’s activities certainly raises some interesting points. What exactly are employees obliged to divulge about their partners? How far does fidelity to the employer reach? Until very recently in Australia, courts have recognised what is known as ‘spousal privilege’ in criminal matters – that is, a spouse cannot be called upon to give evidence against their partner. In the 2011 Stoddart case, however, the High Court greatly diminished this privilege – leaving jurisdictions rather uneven in their application of the principle. Even putting the criminal law viewpoint to one side, the idea of being compelled to provide private information about a spouse or partner to a third party certainly causes general discomfort. And being confronted with such questions by an employer would no doubt be rather unsettling for the worker involved. How and when it is appropriate to expect an employee to respond to a request for such information is certainly no ‘one-size-fits-all’ scenario. 

Answering and cooperating
Information began to surface about Mr McKay’s new place of employment, after which Ms Lakatos was asked direct questions by her employer about her partner’s activities. She refused to respond at first – and was later dismissed for failing to comply with a reasonable request. In his reasoning, Commissioner Richards noted that the circumstances were such that the employer was within his rights to request the information, as it concerned possible significant threats to the business. It was in fact a part of Ms Lakatos’ role to identify such commercial threats, and her refusal to provide relevant information in this regard was deemed unacceptable. As the Applicant, Ms Lakatos was seeking a finding by the Commission that her dismissal from Termicide was ‘harsh, unjust or unreasonable’ in accordance with s394 of the Fair Work Act 2009. She was unsuccessful. In rejecting the Application, Commissioner Richards stated that the employee’s actions in withholding crucial information about her fiancé and his employment with a competitor were unreasonable: “…she refused to provide her employer with any answer to those inquiries, or to cooperate with him at the most elemental level…this was a damaging position for the Applicant to have adopted. Following the Applicant’s refusal to cooperate, [the employer] thereafter lost confidence in the Applicant as an employee who would serve him with all due fidelity.” [63-64 in part]
Questions, questions…
An employer cannot reasonably expect an answer to any and every question that might be put to an employee. There are personal and private issues in any person’s life that do and should remain outside the scope of an employer’s ‘business’. Walking the line between appropriate questioning relevant to the business and an inappropriate inquisition can be a delicate exercise. While finding in favour of Termicide, it is worth noting that Commissioner Richards did opine that: “…there were elements of harshness to the manner of the Applicant’s dismissal.” [80] The particular circumstances in this case – including a discernible urgency regarding potential commercial damage by the Applicant and her fiancé – made the position of the employer more palatable to the Commission.

It certainly appears that information regarding a spouse or partner cannot reasonably be withheld by an employee where legitimate business concerns are involved. This is an evolving area of the law. As in most workplace issues, careful consideration and planning will go a long way to ensuring that the correct approach is taken in similar circumstances.