A decision yesterday again highlighted that employers must investigate misconduct allegations fairly and give employees the chance to respond to allegations against them.
The applicant was a childcare worker. She failed to properly secure a child in a high chair. The child fell from the chair but, luckily, was not injured. The employer interviewed several other carers about the incident (but not the applicant) and decided to dismiss the applicant for misconduct. The applicant was then called to a meeting at the end of her shift and dismissed. The Fair Work Commission found that there was a valid reason for the decision and no warning was required. However, the Commission held that the dismissal was unreasonable as the applicant should have been given an opportunity to respond to the allegations against her before any decision was made. To read the full decision - https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2019fwc4222.pdf
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Broader whistleblower laws come into effect on 1 July 2019.
Exactly how these laws will affect corporate life remains to be seen. But the changes are clearly designed to improve standards of corporate and government behaviour by making it easier for employees to call out their legitimate concerns publicly. The changes highlight the need for larger companies and government departments to have strong whistleblower protections in place. They advantage employers who have a culture that encourages team members to raise concerns openly and who ensure that those concerns are then looked into – and responded to appropriately. Most leading law firms have issued useful guidance on the changes. Here’s one update that we like from Lander & Rogers - https://www.landers.com.au/insights/publications/company-and-securities-law/blowing-the-whistle-2/ Here's an example of the Fair Work Commission dealing with the difficult question of bullying allegations made while a performance management process is on foot.
In this case, the Commission declined to make stop bullying orders. The Commission said, "it is not acceptable to use the stop bullying jurisdiction ... to prevent, delay or deflect justifiable disciplinary outcomes or to claim that the disciplinary outcomes themselves are repeated unreasonable behaviour, constituting bullying". A factor relevant to the decision was that the employer had conducted both an internal and external investigation into the bullying allegations - and both investigations had found the allegations were not substantiated. The key points to take from this decision (and other similar recent cases) are -
For the full decision see - https://www.fwc.gov.au/documents/decisionssigned/html/2019fwc4274.htm |
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