If allegations of misconduct are made against an employee, how should they be managed? Should they be investigated first, and then discussed with the employee before any decision to dismiss is made?
This matter was considered by a Full Bench of the Fair Work Commissiion (Commission) in the matter of Parker.
The Worker was dismissed following two allegations brought by a co-worker against him.
It was alleged that the Worker asked a younger female co-worker to step into his office, and said, “If you ever call me that business guy, or that finance guy, I will backhand you. I don’t care if you are a girl”.
A second incident was alleged to have occurred approximately two months later, after the same female co-worker explained to the Worker that she felt uncomfortable dealing with certain customers. The co-worker said to the Worker that this was due to their rude and sexist comments and that she was frustrated with them. In response, it was alleged that the Worker said to her, “Just show them your t*ts, you will be fine”.
The Employer had in place a “handbook” which set out a policy dealing with “Anti-Discrimination, Sexual Harassment, Bullying & Violence”. The Employer claimed that the Worker had received a copy of this handbook and had been trained with respect to it.
The Worker was handed a letter by the Employer after the second incident had been reported. The letter referred to the allegations, which stated in part, “Both incidents are deemed unacceptable and will result in your instant dismissal for gross misconduct … To save prolonging the matter, please remove your personal effects upon your exit this afternoon and also ensure that all property of (the Employer) remains at the dealership”.
The Worker brought an unfair dismissal claim and was successful in being awarded $7,459.41 in compensation.
At first instance, Commission Spencer determined that there had been a valid reason for the Worker’s dismissal relating to his conduct. However, it was also found that the Worker had not been provided with procedural fairness. Crucially, it was found that the Worker had not been afforded the opportunity to respond to the first allegation at the time it was alleged to have occurred. In addition, the allegations were not put to the Worker to allow for his response so that the Employer could ” … consider the outcome”, before the decision to dismiss was made.
It was also found that the Worker’s dismissal related to conduct, and that the Worker ” … had been trained in the relevant policies regarding conduct of this nature”.
Commissioner Spencer found:
“Even if the procedural issues had been rectified, it would not have changed the decision to terminate the (Worker’s) employment. Given the gravity of the comments, dismissal was appropriate in all the circumstances. Taking into account the procedural flaws, a procedurally fair process allowing for an investigation and proper process of notification and response would have taken a longer period to be discharged. The termination was unfair on this basis”.
It was also found that had the Worker been taken through a procedurally fair disciplinary process, this would have resulted in him remaining employed for a further three weeks, which formed the basis of his award of compensation.
The Worker sought permission to appeal the matter before a Full Bench of the Commission, broadly on the basis that the Commissioner at first instance showed bias against him, and that she had made a number of, “… significant errors of fact”. The Worker failed in this application.
While the Worker was successful to some extent at first instance (failing however in seeking permission to appeal), that might not have been the case had a procedurally fair process been instigated. Had the allegations against the Worker been properly investigated, and importantly, put to him to consider his response before any decision to take disciplinary action had been made, the Worker may have failed in his application at the outset.
Employers need to carefully consider any relevant allegations which have been reported, investigate them, and have them put to an alleged perpetrator before any relevant decisions are made. To do otherwise may expose an employer to a successful unfair dismissal claim.