A robust complaints-handling process is essential for all workplaces. However, as with any system designed for good, a select few people will try to exploit or misuse it. In this article, we review two recent cases of the complaints-handling process being misused for personal gain or out of spite, and discuss what employers can do to mitigate this risk.
Employees misusing the complaints-handling process
This was the case in Adamopoulos v Thompson Healthcare [1], in which three nurses colluded to get the Director of Nursing terminated. In total, HR collected over 45 complaints from the three members of staff about the Director of Nursing at the aged care centre. This was reduced to 4 ‘pertinent’ issues which were presented to the Director of Nursing, Ms Adamopoulos. The judge deemed the evidence of the three nurses as “tainted by hyperbole, exaggeration and in some cases plain fabrication. It can only be viewed through a prism of bias and prejudice against the applicant.”
The judge found that the three nurses had “obvious ulterior motives in wanting to bring the applicant down and all three stood to benefit from her dismissal.” One of the nurses had been given a warning previously by Ms Adamopolous and held a vendetta, one of the nurses resented Ms Adamopolous for her decision to stop her from attending a specific weekly meeting and the third nurse would to be promoted to Director of Nursing if Ms Adamopolous was terminated (as she was).
The judge also found that the investigation was largely procedurally unfair, as Ms Adamopoulos had only been given 24 hours to respond to allegations, which were of a very broad and generalised nature. She also did not have access to her work computer during this time, which contained the majority of the evidence which she wanted to use to dispute the allegations. The judge was particularly scathing of the HR Manager, Ms Jennings, and stated that the HR Manager should have been able to see that the allegations were vexatious stating “that Ms Jennings could not see the obvious collusion from the wording of the lists of complaints is a matter of some regret”.
Ms Adamopoulos did not want to return to the workplace and was awarded the maximum allowable compensation of 26 weeks work ($69,450) and superannuation.
School committee acting out of spite
The second recent case involves a school committee banding together to fire their principal [2]. Of course, in most Australian states, school councils have various powers which include the hiring, performance management and (if necessary) termination of the school principal. In this case, they went too far.
Beechworth Montessori School’s Committee of Management (CoM) hired Ms Martin to be their new principal in January 2016, which coincided with significant challenges within the school. The problems began because of two unrelated staff changes that happened around the same time: one staff member sought to resign, whilst Ms Martin terminated another. The combined effects of these staff movements were immediate and incendiary.
The relationship between Ms Martin and the CoM soured to the point where the committee began searching for reasons to end her employment. The Fair Work Commissioner found that three of the seven reasons used to terminate her employment were not just reasons. Furthermore, the committee released a statement to the school saying that Ms Martin’s position was untenable and strongly suggested that she resign before they had formally terminated her, putting Ms Martin in the difficult position of trying to defend herself when the school community already believed she would leave.
Moreover, the Fair Work Commissioner found that there were procedural deficiencies in how the CoM had dismissed Ms Martin, which severely prejudiced her position. The most serious deficiency was that the CoM had presented the reasons as to why they were seeking Ms Martin’s termination on the 16th of December 2016, they told Ms Martin that they needed a response to all of these allegations by the 21st of December 2016, however the committee did not actually communicate to Ms Martin that they were going through with her termination until the 17th of January, leaving Ms Martin in limbo for over a month.
The Fair Work Commissioner ultimately found that Ms Martin’s dismissal was unjust because she did not have an opportunity to meaningfully respond to the proposition put to her, by the CoM, that her employment was no long tenable. Additionally, it was found unreasonable that the school had communicated confidential information to the school community. Finally the judge found it was unreasonable that Beechworth Montessori CoM had made allegations to Ms Martin, said to be valid reasons for the termination of her employment, which in all the circumstances were capricious or spiteful, and which in any event were unfounded. Ms Martin was found to have been unfairly dismissed by the CoM.
Key Lessons for Employers
There are three lessons to be learnt from these cases:
1. Even if you suspect a complaint has been made for vexatious reasons, you must conduct a proper investigation into the complaint.
2. Ensure your investigation is procedurally fair. In both of these cases, the respondents were not given sufficient time to respond to the allegations made against them.
3. If you are not sure how to conduct a fair workplace investigation, employ an experienced workplace investigator. The cost of conducting the investigation will be significantly less than the reputational damage, the cost of litigation and the damage to employee morale and respect for the organisation’s leadership.
[1] Adamopoulos v Thompson Healthcare [2017] FWC 2505
[2] Bronwen Martin v Beechworth Montessori Children’s Group Incorporated T/A Beechworth Montessori School [2017] FWC 3314
