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Due process employers’ friend in cases of employee misconduct

THE recent controversy surrounding the Federal Government’s attempt to introduce amendments to the Workplace Relations Act exempting small businesses from unfair dismissal laws highlights employers’ difficulties when it comes to managing employee misconduct.

These difficulties often manifest themselves in unfair dismissal cases when employers fail to recognise that, even where an employee’s conduct gives them a right to terminate that person’s employment, that right must still be exercised fairly.

There have been several recent decisions where, on the face of it, an employee’s conduct gives rise to a right of the employer to terminate, but the failure to follow due process or adequately investigate the alleged misconduct has resulted in the termination being found unfair. Examples include:

p a truck driver who sexually harassed a female colleague was re-employed;

p a crowd controller who used unnecessary force when evicting a patron was reinstated;

p ongoing confusion over an employer’s rights when employees access pornographic material over the Internet at work;

p an employee who stole a mobile telephone from work and then lied about it was been reinstated; and

p an employee who had a fight with a colleague at work was reinstated.

In all of these cases employers found themselves in an extremely difficult position, particularly in cases involving harassment or physical assaults, where the employer faces liability for the conduct of the employee but may feel limited in the steps that can be taken against the employee.

There are no hard-and-fast rules to managing employee misconduct. Indeed attempting to impose hard-and-fast rules will often cause an employer’s actions to be criticised.

All alleged employee misconduct must be dealt with on its merits.

A fair process does not mean “three strikes and you’re out”. There is not and has never been a rule that allows an employer to terminate an employee after giving three warnings. Conversely there is no rule that says an employee must be given three warnings.

Some misconduct will justify termination without warning and some misconduct will require multiple warnings, or even employer-assisted counselling before termination would be justified.

In Jack Spence v Port of Brisbane Corporation, a truck driver who sexually harassed a female colleague was re-employed after the Queensland Industrial Relations Commission found the employer had failed to follow its own policies. The employer’s failures included:

p departing from the stated position of ‘zero tolerance’ to harassment by giving the employee numerous ‘unofficial warnings’;

p when the complaint was formally investigated, the investigation was conducted hastily and without regard for the employer’s own grievance procedure; and

p during the investigation the employee was not adequately informed about the inquiry.

The decision highlights the need for employers to manage employee misconduct quickly and with due process. Employers must adequately work through all available evidence surrounding an allegation and follow proper procedures in conducting an investigation.

The difficulties faced by small business have been recognised at a Federal level with regulations that require the Australian Industrial Relations Commission to specifically consider the differing capacity of businesses of different sizes to comply with dismissal process and procedures. The absence of dedicated human resource specialists in small and medium business is a case in point.

However, this obligation does not protect employers from poor employment practices.

In Katherine Sykes v Heatly Pty Ltd t/a Heatly Sports the AIRC held that improper conduct by a small employer was not protected just because the employer did not have a specialist HR expertise available to it.

No such protection exists in WA.

For small business, while written policies and procedures are helpful and certainly worth developing, policies and procedures are only as good as their implementation and application. The key is discipline in management and the application of basic principles.

p Do not act on suspicion, assumptions and innuendo.

p Investigate concerns or complaints and establish the facts as far as you can.

p Let the employee put their side of the story, and follow up any further matters they raise.

p Do not make a decisions about an employee’s employment until you have given the employee the opportunity to put their case.

As always – document, document, document.

Employers also should ensure they have written contracts of employment and that they comply with them.

Finally, employers should always get advice before making a final decision to terminate an employee’s employment. Ideally this advice should be from a specialised industrial relations or HR adviser, but it also can be useful to have an independent third party consider the process and the decision making.

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