October 31, 2024
Halloween can be a scary time of year … Ghouls, goblins, the potential ban of TikTok and the sequel to the Joker movie top the list of frightening things on this horrifying day. For employers however, the real fear is making it to the end of the year without any significant employment or workplace safety issues arising.
With this in mind, and to guard against the risk of any skeletons coming out of the closet, we have provided a spooky summary of recent workplace decisions and some tips to keep in mind as we head into the festive season.
Don’t always believe the scary stories
In a stark warning to employers who undertake internal workplace investigations, the Fair Work Commission (FWC) recently ordered an employer to pay compensation to an employee who was summarily dismissed, based on “scanty” hearsay and the “sheer number of allegations”.
In Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd[1], a Team Leader faced allegations of bullying and discrimination in 2022 and 2023, including claims of assigning inappropriate tasks (like cleaning toilets), cutting hours, imposing unreasonable deadlines, isolating a worker wearing a burka, and excluding African, Australian, and Filipino workers from a performance scheme that provided bonuses. The employer put these allegations to the Team Leader, who denied them, but the employer substantiated the allegations on the same day and gave the Team Leader 24 hours to respond after denying a request for an extension of time. The Team Leader was summarily dismissed on 7 June 2024.
In support of her unfair dismissal application, the Team Leader submitted that the decision to dismiss was pre-determined and that she believed the employer invented the allegations to find a reasonable excuse for dismissal. In response, the employer tendered evidence from the Chief Executive Officer (CEO) who said that the employer had recruited a new manager in March 2024 who had discovered the “manipulative streak” of the Team Leader and prompted an investigation into allegations involving her inappropriate workplace conduct.
The CEO said the investigation determined that the Team Leader engaged in “years of systemic racism and abuse of power, and that a range of workers had “shared distressing accounts of bullying” by the Team Leader, but were “reluctant to speak up” due to fear of reprisal.
A representative of a labour-hire provider to the employer also gave evidence that 26 workers had made complaints against the Team Leader alleging “sub-human treatment”. However, there was no evidence of these complaints provided to the FWC.
The FWC considered the evidence and determined that it could not be satisfied that the Team Leader had engaged in bullying or discrimination, because “contrary to the company’s contention, the evidence in this matter is not compelling”. For this reason, the FWC determined that none of the allegations were substantiated and the employer had no valid reason for dismissal, with, Deputy President Coleman making the following comments[2]:
“It is scanty, conclusory, and largely second hand, that is to say, hearsay … it [the employer] appeared to believe that the sheer number of allegations against [the Team Leader] presented a persuasive case of guilt. But not a single one of these allegations has been substantiated. In particular, the allegations that [the Team Leader] discriminated against other employees on the grounds of race or religion rely on mere assertions …”
“When persons with a protected attribute allege that they have been treated less favourably than others because of that attribute, the appropriate response is to investigate the matter and reach a reasoned conclusion as to whether, on the balance of probabilities, the allegation is actually true. It is unreasonable and unfair to presume that it is …”
“The fact that there may be multiple allegations does not lower the standard of proof.”
The Team Leader did not seek reinstatement and the FWC ordered the employer to pay the Team Leader compensation for being unfairly dismissed.
This decision highlights the importance of undertaking a robust investigation that is procedurally fair and adheres to the principles of natural justice. With this in mind, we recommend that employers should ensure that all evidence gathered during an investigation is credible, recorded and appropriately considered before making findings.
Exorcise the ‘Tick and Flick’ Approach: Bring Your Policies and Procedures to Life
In the recent decision of Ramlan Abdul Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates[3] (Phosphate Resources), the FWC considered the importance of effectively communicating and training employees in policies and procedures in the context of the dismissal of a long-serving truck driver for serious misconduct.
In Phosphate Resources, the employer sought to rely on regulation 1.07 of the Fair Work Regulations 2009 (Cth) (Regulations) to characterise the employee’s harassment of a colleague, including frequent inappropriate comments, as serious misconduct.
Deputy President O’Keeffe rejected this argument and distinguished an employee engaging in harassment from sexual harassment, with only the latter being contemplated in the definition of serious misconduct set out in the Regulations. Pursuant to a finding that the employee’s behaviours did not have a sexual undertone and were best described as bullying, the Deputy President considered whether the employee’s bullying behaviours had created a serious and imminent risk to the health and safety of the colleague on the receiving end of this conduct. While accepting that the colleague was upset, unhappy and uncomfortable, the Deputy President found that this did not amount to evidence of a serious and imminent risk to his health and safety and was therefore not serious misconduct within the meaning of the Regulations.
While the Deputy President found that the employee’s behaviour did not amount to serious misconduct, the totality of the employee’s behaviour, including bullying, “victim blaming” his colleague and showing a lack of appropriate remorse for his conduct, amounted to a valid reason for termination of employment. As the employer had written to the employee setting out the allegations against him and invited him to respond, the employer was also found to have afforded the employee procedural fairness in the lead up to dismissal.
However, in exercising his discretion under section 387(h) of the FW Act to consider any other relevant matters, the Deputy President ultimately found that the dismissal was harsh and the employee was entitled to a remedy for unfair dismissal, having regard to the employee’s:
- length of service of approximately 20 years with no disciplinary history of note;
- anticipated difficulties obtaining alternate employment, due to being 62 years of age, having limited English and the limited job prospects available on Christmas Island where the employee lives;
- claim that he was unaware of the policies the employer alleged his conduct contravened.
The final point is an important reminder for employers to consider strategies for effective implementation of policies and procedures. Deputy President O’Keeffe found that the employer’s discussion of its Code of Conduct at a toolbox meeting and providing copies of the presentation for employees to take was insufficient to promote serious workplace behavioural requirements to employees and appeared to be part of a “tick and flick” exercise in ensuring employees were aware of policy requirements.
In light of this decision and particularly coming up to the festive season, we recommend employers consider the following to ensure they are best placed to demonstrate employee awareness of policies and procedures:
- Conduct a review of policies and procedures to ensure they clearly communicate the expectations for employee conduct in a way that is likely to be understood by the specific workforce.
- Provide appropriate and interactive training for employees that is tailored to the demographics of the employer’s workforce, such as by taking into account cultural or language differences.
- Maintain records of employee training in policies and procedures.
- Ensure employees are bound by the terms of their employment contract to comply with policies and procedures.
Also, given the serious nature of the allegations in this decision, the FWC has made clear that any failure to follow proper process and policy can see an employer come unstuck. For this reason, a serious approach needs to be adopted.
[1] [2024] FWC 2784.
[2] [2024] FWC 2784 at [24].
[3] [2024] FWC 2868.
If you require assistance
Don’t be haunted by questions about the above cases. If questions are creeping up on you or if you’re facing any bone-chilling employee issues, contact Kingston Reid for advice before things turn into a fright!
To keep up with the latest developments across employment, workplace relations and workplace health and safety law, sign up to our e-newsletter, Kingston Reidable by emailing [email protected].
The views expressed in this article are general in nature only and do not constitute legal advice.
Please do not hesitate to contact us if you require specific advice tailored to the needs of your organisation in relation to the implications of these changes for your organisation.