Our blog post this week gives you a snapshot of five key, recent cases and the lessons to be learnt from them for employers.
1. Misuse of the Complaints Handling Process – Adamopoulos v Thompson Healthcare [2017] FWC 2505
In this case, three nurses colluded to bring about the termination of their Director of Nursing. In total, HR collected over 45 complaints from these three members of staff about the Director of Nursing, Ms Adamopoulos, at the aged care centre. This was reduced to four ‘pertinent’ issues which were presented to Ms Adamopoulos. The judge deemed that the evidence of the three nurses was “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 FWC held that the dismissal had been unfair and awarded Ms Adamopoulos the maximum compensation of 26 weeks pay.
Lessons for employers
Even if you suspect a complaint has been made for vexatious reasons, you must still conduct a proper investigation into the complaint. At the same time, however, simply because all allegations in an investigation are not proven, this does not mean the allegations were made in bad faith. Only a separate investigation into alleged vexatious complaints can determine that in a fair and reliable way for all.
2. Duty of Care During Investigation – Govier v UnitingCare Community [2017] QCA 12
As part of the investigation process, the employer sent two insensitive letters to respondent (which failed to have regard to how her illness and her currently being in hospital may influence how she was affected by receiving these letters). Ms Govier claimed that her employer had failed in its duty of care to her, and that receiving these letters in the circumstances had contributed to a psychiatric injury.
The court found that an employer’s duty of care did not extend to an obligation to supply a safe system of investigation. Special leave to appeal that decision to the High Court, however, has been granted with an outcome expected soon in 2018. This issue is therefore not yet fully resolved.
Lessons for employers
Despite uncertainty about whether an investigator does owe a duty of care to those participating in an investigation, and the relevant reach of the employer’s duty of care, there is a general duty of care to provide a safe system of work for the conduct of the tasks than an employee is ordinarily engaged to perform. Be mindful of how you communicate with all the participants and make sure you do consider how to be aware of and navigate the stress for participants that can arise in conducting an investigation.
3. Choosing an Appropriate Support Person – Leanne Trembath v RACV Cape Schanck Resort [2017] FWC 4727
The employer had concerns regarding Ms Trembath’s compliance with their cashiering policy and invited her to a meeting. Ms Trembath was also invited to bring a support person. The employer explained that they believed that the support person Ms Trembath had elected represented a conflict of interest and instead the employer elected for the Resort Manager to be the support person.
The FWC was very scathing of the Resort Manager being the support person and stated:
“By no means could [the resort manager] be regarded as someone who could give Ms Trembath ‘support’ in any capacities implied by that word.”
Lessons for employers
It is best practice to have a support person who is not involved in the alleged conduct, furthermore, they should not be involved in the decision making process regarding the employee’s employment.
4. Investigation to further bully – Lynette Bayle v Bendigo TAFE and Ors [2017] FWC1886
In this case, an employee obtained an injunction to prevent a workplace investigation going ahead until the FWC had determined the employee’s substantive application for a stop bullying order. This case is the first of its kind to obtain this sort of interim order.
Lessons for employers
This case demonstrates that where a workplace investigation is triggered against a manager as a result of apparently legitimate management action, it can provide that manager with an opportunity to argue that the workplace investigation amounts to further bullying conduct and seek a remedy at the FWC.
5. The Chairperson is a ‘worker’ – Trevor Yawariki Adamson [2017] FWC 1976
Under the Fair Work Act 2009, only a worker is covered under the legislation. Mr Adamson successfully argued that the Chairperson of an Executive Board should be considered a worker and therefore the anti-bullying scheme could be applied.
Lessons for employers
This case demonstrates the far reach of the Fair Work Act 2009 and its potential application to include company directors as well. This means that successful bullying claims can be made against those who may not have traditionally been viewed as workers, such as the Chairperson or senior executives.
Best Practice in Workplace Investigations
Worklogic is thrilled to announce that the second edition of our book Workplace Investigations has just been published by Wolters Kluwer and is available for purchase for $90 (ex GST). Use the code WORK20 when purchasing to save 20%!
Our updated second edition incorporates the most important “workplace investigation” cases which have further developed and refined “best practice” investigations since 2013, when our first edition was released.
With the second edition, you will learn how to:
- judge when an investigation is required,
- scope and plan an investigation appropriately,
- collect and analyse evidence,
- make findings of fact in a procedurally fair way,
- assess any wrongdoing against your organisation’s policies and procedures, in cases of bullying, harassment, discrimination, fraud and other breaches of policy, and
- determine whether your organisation should take any further steps to improve working relationships and to manage risks.
The 2018 edition is fully updated from 2013, and also contains new material on digital evidence and fraud.
About Grevis Beard
Grevis Beard is the co-founder and Director of Worklogic and has amassed significant knowledge of the dynamics of workplace disputes and their resolution from more than a decade’s experience at Worklogic. Grevis works with a range of clients to improve workplace communication and behaviour, manage workplace risks and handle complaints by conducting workplace investigations, mediations and reviews.
Worklogic works with employers to resolve workplace complaints and create a positive culture at work. Please contact Grevis for an obligation-free, confidential discussion on any challenges you face embracing moral courage at your workplace.
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