The Fair Work Commission has described the process undertaken by an employer to dismiss a long serving employee with an unblemished employment record as “fair, thorough and balanced”. In that case, the employee admitted using racially denigrating and offensive language towards co-workers but argued in his defence, that his language was common workplace banter and that his co-workers had never indicated they were offended by his remarks.
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The Commission described the underlining premise of this defence as “very unfortunate” noting that:
“The attempt to defend or otherwise justify the applicant’s use of racially offensive language on the basis that the applicant didn’t believe it was harmful, and that no one complained, is an approach that has regrettable and disturbing parallels with the recent exposure of incidents of sexual harassment in the employment context, and which has created what is referred to as the ‘#MeToo movement’.”
The Commission dismissed the employee’s unfair dismissal application and praised the employer’s investigation and dismissal process, describing it as “measured and careful”. So, what did the employer do to protect itself against a finding of unfair dismissal and what lessons can we take from the employer’s approach?
Employer’s approach
The employer adopted a fair and appropriate process to investigate the allegations of misconduct, make findings about those allegations and to determine the appropriate disciplinary steps. That process involved:
- meeting with the employee and advising him of the allegations made against him;
- following up with a letter confirming an investigation would occur and putting the employee on notice that the conduct in issue contravened various company policies and did not meet appropriate standards of workplace behaviour;
- making a preliminary finding that the employee had engaged in serious misconduct and inviting the employee to provide additional information as to why he should not be dismissed;
- arranging a further meeting to allow the employee to provide that additional information and allowing the employee to provide a written response;
- giving genuine consideration to the employee’s responses, his employment record more broadly and the appropriate disciplinary outcome;
- allowing the employee to have a support person with him at all meetings; and
- advising the employee of his dismissal and the reasons for dismissal during a face-to-face meeting and then confirming those matters in writing.
Tips to get it right in your workplace
- Conduct a fair and thorough investigation process and invite the employee to have a support person with them during all relevant meetings.
- Put the employee on notice of the allegations against them and allow them an opportunity to respond. Give genuine consideration to the employee’s responses.
- Make a preliminary finding. If considering dismissal, allow the employee an opportunity to provide any additional information they think is relevant to the finding and proposed outcome. Give genuine consideration to any information supplied.
- Make a final determination. If misconduct is established, determine the appropriate disciplinary outcome having regard to the misconduct and the employee’s broader circumstances and employment history.
- If you decide to dismiss, tell the employee during a face-to-face meeting and provide the reasons for dismissal. Follow-up with a letter confirming dismissal and the reasons for dismissal.
If you need assistance to investigate or manage employee misconduct, please contact Hannah at hannah@theworkplacelawyers.com.au, Patricia at patricia@theworkplacelawyers.com.au or Kim at kim@theworkplacelawyers.com.au
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