|
|
|
|
Where am I now? Lawlink > Anti-Discrimination Board > Publications > Fair outcomes in grievance handling - Equal Time, Autumn 2007
|
Print page
|
Fair outcomes in grievance handling - Equal Time, Autumn 2007
 Introduction
Was the investigation fair?
Was all relevant evidence taken into account?
Is the outcome consistent?
Mitigating circumstances
Seriousness
Introduction
‘Grievances must be handled fairly.’
This ‘motherhhood’ statement encompasses both the manner in which the grievance is investigated (due process) and the eventual outcome for the parties.
To be fair, an outcome should:
- Result from a fair investigation
- Be decided after all the evidence is taken into account
- Be consistent with the those in similar cases
- Take into account ‘mitigating’ circumstances
- Reflect the seriousness of the conduct
Was the investigation fair?
If disciplinary action is not based on the findings of a fair investigation, there is no way of telling whether or not it is fair. An industrial commission is bound to overturn the outcome of an unfair investigation. Whether or not the worker was guilty of the alleged misconduct is not the issue.
There are numerous cases illustrating this principle. In one, Murphy v AGC [2000] NSWIRComm. 162 , a man was sacked after an investigation into alleged sexual harassment. The human resources manager admitted that she had decided that he was guilty before she investigated the complaint because he had previously been found guilty of sexual harassment. The Industrial Relations Commission held that the HR manager’s admitted bias meant that she had not taken care to ensure that he had all the information and that his defence had not been properly considered. He received compensation.
The Commission found that another employee, who lacked adequate English language skills, was unfairly dismissed. His employer had refused to allow representation by a union delegate during the investigation. It said that an employee who cannot adequately prepare his defense, or speak on his own behalf, is not getting a fair hearing, Ehab Abdalla v Iveco Trucks Australia [2002] .
In another case, Naunton Thomas v Westpac No 11241 of 1994, however, the dismissal of a bank executive was held to be fair. The investigation was carried out in accordance with the company’s grievance procedure, of which the executive was well aware. It was carried out according to the requirements of due process. He had every opportunity to defend himself and all relevant evidence was collected and considered.Was all relevant evidence taken into account?
If an employee raises issues, or names witnesses, in the course of an investigation, it is important to follow up.
Mr H. denied that he had accessed pornographic internet sites. He argued that it was possible that someone else had used his computer to do this because company internet security was poor and employees often used each others passwords. He was, however, summarily dismissed. Whether or not someone else might have been the culprit was not investigated. The commission found in Harrington v Phillip Morris [2002] that the allegations against Mr H. were unsubstantiated and the investigation flawed because it did not take into account issues raised by him. He was reinstated.
In another case, Simon Richard Lane v CBA[2000] NSWIR Comm 274, the employer did not consider the evidence at all. It simply followed the recommendations of the independent investigator. The Industrial Relations Commission found both that the report was biased and that the decision-maker had accepted the recommendations without considering the material on which they were based. The employee, who had been the subject of very serious allegations, received substantial compensation.Is the outcome consistent?
When two workers were dismissed after a workplace prank, no action was taken against their workmates, who had encouraged and participated in the incident. This was just one factor leading to a finding that their dismissal was unfair. Everyone involved should have been subject to investigation and, where appropriate, disciplinary action. It wasn’t fair to single out just two of the participants.
Consistency doesn’t mean, however, that the same punishment should be meted out to everyone found guilty of misconduct. An employee who was dismissed after sending and receiving pornographic emails at work argued that his dismissal was unfair, Williams v Centrelink PR942762 (15 January, 2004). Other employees who were also involved in sending and receiving the emails had been warned or disciplined in ways that fell short of actual dismissal. He, however, had sent more and worse emails than the others. He showed no remorse and, being an harassment contact officer, he should have known better. His dismissal was upheld as fair. Mitigating circumstances
Mr B., who had been the subject of on-going practical jokes at work, finally lost his temper when a co-worker turned off the microwave while his lunch was heating. Mr B. picked up a hammer and threatened the other man, Constantin Balica v Toyota Motor Corporation Australia Ltd PR43758. He was summarily dismissed.
His dismissal, however, was deemed unfair. The commission found that mitigating circumstances had not been taken into account. It found that his age, his many years of satisfactory employment and the provocation he suffered were all issues that should have been considered. It suggested that something akin to suspension pending completion of an anger management course should have been considered.
In another case, Rogers v State Rail PR959994 (13 July 2005), the dismissal was held to have been fair, despite mitigating circumstances. Mr R. was sacked for sending an email. Among other mitigating circumstances, he raised his long service with the organisation, awards that he had received, his contributions to the community, and the fact that the recipient of the e in a supervisor and had a responsibility to ensure that others new and complied with the employer’s policies.
Another example is the case, Laird v Commissioner of Police [2001] NSWIRComm 253 (22 October, 2001), of a police officer who sent a recording, of a crime suspect’s telephone call to a sex line, to another officer. This a breached the Telecommunication Act 1979 and the Police Service Act 1990. He was demoted, his chances of promotion was delayed for 12 months and he was to be more closely supervised. He appealed. The Commission ruled that the demotion was to harsh, taking into account the police officers impeccable record, honesty in admitting his mistake and his contrition.Seriousness
Some incidents of workplace misbehaviour will, of course, justify summary dismissal or other severe disciplinary action. The punishment should, however, fit the seriousness of the behaviour.
Questions to ask yourself include:
- how serious is it?
- have you got enough evidence?
- what outcome did the person who complained want?
- is it fair, reasonable or possible?
- did the accused person intend any harm?
- should they have known better?
Ms H worked as a prison officer and was dismissed after an inappropriate relationship with an inmate. She argued in Fiona Hall v Department of Corrective Services. Victorian Div –VI 889 of 1994, that it was harsh, unjust and unreasonable because it hadn’t taken into account mitigating factors. These included the fact that she was she was young and relatively inexperienced in this area of work, and had received little training and supervision; counselling provided was inadequate in helping her deal with the behaviour; she had a good employment record; and with adequate training, supervision and counselling had great future potential.
The court said that these issues should have been taken into account. It also said, however, that the offence was so serious that even if a full investigation into the mitigating factors had happened, it would have warranted dismissal.
Not arriving at a fair outcome following the investigation of a complaint can be hugely damaging in the workplace. The NSW Industrial Relations Commission described one such case as "very sad and depressing". It stated that "The evidence was riddled with claims and counter claims of sexual harassment, threats, vendettas, corruption, blackmail, theft, lying and defamation." The commission rejected all the claims of sexual harassment against the employee concerned and awarded him $14,620 compensation, Najdov and Macedonian Australian Welfare Association of Sydney Inc [2004] NSWIRComm 101, 22/04/04).
|
|
|
