The Fair Work Commission’s decision in Bronson Brown v Oracle CMS Pty Ltd gives some useful guidance about how long employees should be given to rectify misconduct. It suggests employers should allow employees more than a week to change their position.
In about 2015, Mr Brown joined Village Road Show Theme Parks in a call centre support role. In 2018, Village decided to outsource some of its support functions – including the work done by Mr Brown - to Oracle. Mr Brown was given the option of transferring to Oracle as part of that operational change. It seems Mr Brown was anxious that his job would change if he moved to Oracle. He asked for, and received, some assurances that his day to day work would stay the same. In September 2018, Mr Brown transferred from Village to Oracle. Mr Brown’s day to day role did not change immediately – he continued to provide call centre support to Village. However, some months later, things did change. On Tuesday, 12 March 2019, Mr Brown’s supervisor told Mr Brown that he would need to learn how to do other work in addition to the Village work. The supervisor told Mr Brown to log off the Village system and to start training in other Oracle products. Mr Brown refused to follow that direction. Later that day, Oracle issued a first written warning to Mr Brown. Three days later, on Friday, 15 March 2019, Oracle’s Chief Operating Officer telephoned Mr Brown and instructed him to train in other Oracle products. Again, Mr Brown refused. Later that day, the COO sent Mr Brown an email explaining that Mr Brown was being directed to learn other Oracle products so that work could be fairly distributed in his team. The email also stated that failure to do so would be considered serious misconduct. The following Tuesday, 19 March 2019, representatives from Oracle met with Mr Brown to discuss the position. After that meeting, the parties exchanged correspondence but Mr Brown continued to refuse to learn other Oracle products. The next day, 20 March 2019, Oracle issued a second written warning to Mr Brown and asked him to sign the document. He refused to do so. Later that day, Oracle issued a third written warning to Mr Brown. Oracle also asked Mr Brown to attend a meeting the following day. On Thursday, 21 March 2019, Oracle representatives met with Mr Brown and told him that they had decided to terminate his employment with three weeks’ notice. Oracle confirmed that decision in a letter later in the day. Mr Brown then made an unfair dismissal claim. The Commission decided that there was a valid reason for Mr Brown’s dismissal because, “Mr Brown unreasonably refused to perform the work required of him by Oracle”. The Commission stated: “In ensuring efficient use of employees’ time, managers and employers will need to, at times, require employees to perform duties within their skill and competence that is not the work that the employee is accustomed to or even wishes to do. Mr Brown was not being asked to cold-call or sell; he was repeatedly asked to train in Oracle products that would, on one example, take no longer than 30 minutes to learn.” Significantly, the Commission stated: “Employees, despite being promised how work will be undertaken cannot hold out for that promise to be kept in a changing world where if you don’t move with the times, on account of technology, or customers, or services provided, you may not have a job. “ However, the Commission found that Mr Brown’s dismissal was harsh, and therefore that Mr Brown had been unfairly dismissed. Commissioner Hunt stated: “I am deeply troubled, however, by the speed and willingness to exit Mr Brown from the business from the period 12 March 2019 to when he was informed of the dismissal on 21 March 2019. The issuing of three written warnings in just nine days, and two written warnings on the same day is disturbingly breath taking, followed by notification of the dismissal the next day. It was, in my view, quite ruthless.” In addition, the Commission found that the tone of some of Oracle’s correspondence was “unpleasant”. The lesson for employers is that they should support and encourage people to change rather than immediately move to sack people who find change hard. That said, the case confirms that employees do have to try to adapt to change and can't stay rooted in the past forever.
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The difference between a criminal and workplace investigation was highlighted in the recent New South Wales Industrial Relations Commission decision of Bobin v Commissioner of Police. On 26 July 2014, Mr Bobin and his then girlfriend, Ms Plumridge, had a fight. Mr Bobin was charged with assault and intimidation as a result of what took place, but acquitted of those charges. In 2018, Mr Bobin was, in effect, dismissed from the police force. One of the grounds for dismissal was that his conduct on 26 July 2014 was contrary to legislated standards and the NSW Police Force Code of Conduct and Ethics. Mr Bobin challenged his dismissal. Mr Bobin argued that his acquittal of the criminal charges meant that any allegations of misconduct in relation to the 26 July 2014 events were not made out. The Commission rejected this argument on two bases. First, the argument ignored the difference between the criminal and civil standards of proof. In relation to that, the Commission stated: “The applicant’s submission of “Not Guilty” of the assault and intimidation charges therefore “Not Guilty” of [the misconduct allegations] does not take into account: the differences between the charges and the Allegations and the standard of proof required to establish guilt of the charges of assault and intimidation versus the standard of proof in this matter.” Second, the argument ignored the difference between a criminal acts and conduct that breaches a relevant employment obligation. In relation to that, the Commission concluded that – whether or not he had engaged in criminal conduct - Mr Bobin had admitted to conduct that “created an environment that caused Ms Plumridge to fear some form of physical violence and she had reasonable grounds for those fears”. Accordingly, the Commission found that Mr Bobin’s conduct did breach the relevant Act, Regulations and Code of Conduct. The case highlights the important differences between criminal conduct and workplace misconduct. Employers sometimes believe that they should stand by if an issue is being investigated by the police. This decision emphasises why that attitude may not be correct. In some cases it may be appropriate, or indeed necessary, for an employer to conduct their own workplace investigation while criminal proceedings are underway. Very different decisions were handed down in two cases that were in some ways alike last week.
In Prasad v Cordina Chicken Farms the Fair Work Commission ordered the reinstatement of an employee who had been sacked for failing to report a safety incident. The employer had described Mr Prasad’s conduct as “inexcusably casual and lackadaisical”. Mr Prasad’s explanation for the failure to report was that he was not on-site when the incident occurred and he had been told by a supervisor that the incident had already been reported to senior management who were investigating it. The employer’s Group HR Manager gave evidence that: “this was not the first time he had failed to report and then he always had basically given an excuse that he couldn’t report because of various reasons”. It is fair to say that this evidence did not find favour with the Commission. The Commission stated: “Regrettably, this evidence and the evidence provided more generally by [the Group HR Manager] was unconvincing and largely unsatisfactory. There was clearly a logical, plausible and reasonable explanation for why the applicant did not complete a formal report or further investigate the safety incident. There was no evidence to establish a proper basis for [the Group HR Manager] to reject this explanation. In simple terms, whatever the applicant may have done or not done in the past does not represent a sound or defensible basis upon which to determine the issues that were under examination at that time.” In Ramadas v Industrial Relations Secretary (Legal Aid Commission of NSW), the NSW Industrial Relations Commission rejected the employee's unfair dismissal claim. Ms Ramadas had been dismissed for a number of reasons, including that she had made vexatious complaints against some of her colleagues. Although the evidence suggested that the employer had been sceptical of the employee’s complaints from the outset, the employer did not dismiss them out of hand. Instead, the employer conducted an initial investigation and – only once that was concluded – engaged an external workplace investigator to review whether the allegations were vexatious. The workplace investigator appears to have conducted an extensive review and he produced a report of over 400 pages concluding that the allegations were not made in good faith. The Commission accepted that the allegations by the employee were “baseless and, in some cases, scandalous” and that the employee's conduct in making them was “misconduct such as to warrant the termination of her employment”. Obviously, every case turns on its facts. But the two cases serve as contrasting examples of how to respond to misconduct issues. In Prasad the employer perhaps jumped too quickly to the conclusion that the employee should be dismissed without giving the employee a “fair go”. Conversely, in Ramadas the employer proceeded more cautiously before reaching the decision to dismiss. Two decisions of the Fair Work Commission last week held that dismissals were not unfair even though the relevant workplace investigations had not been conducted fairly.
Liu v Express Interiors Mr Liu was dismissed after Express Interiors determined that he had "jeopardized others' safety by not following .. project procedure". In particular, the company found that he had opened a window on a high level of a building under construction on three occasions. On one occasion, something fell from a window Mr Liu was found to have left open (though it did not cause any injury). The Commission found that Express Interiors had made real efforts to ensure that the building site was safe and that the requirement to keep windows closed had been conveyed multiple times at morning toolbox meetings. The Commission also found that Express Interiors had ensured that toolbox meeting instructions were translated for the benefit of employees like Mr Liu who were not native English speakers. However, the Commission found that there were procedural failures in the workplace investigation of Mr Liu's alleged misconduct. In particular, Mr Liu had been given limited opportunity to respond to the allegations against him. The Commission accepted that Mr Liu "should have been formally interviewed and asked to respond". Despite this procedural failing, the Commissioner was satisfied that Mr Liu's dismissal was not harsh, unjust or unreasonable. Two factors contributed significantly to this outcome.
You can read the full decision here. Hanna v Home Care Assistance Ms Hanna was dismissed following an incident at the end of a shift with Home Care. Home Care determined that Ms Hanna had threatened staff during the incident and that this constituted serious misconduct. Home Care then decided to terminate her employment immediately. Home Care came to those conclusions without any careful workplace investigation and certainly without giving Ms Hanna any opportunity to respond to the allegations made against her or provide some explanation for her behaviour. Though the details of the incident were ultimately unclear, the Commission was satisfied that Ms Hanna had gone to Home Care's office and threatened staff. The Commission was also satisfied that Ms Hanna made further threats the following day. The Commission found that - "Upon careful contemplation of all of the evidence that was presented in this case, the serious misconduct of the applicant as was found by the employer, has been established. The nature of the applicant’s misconduct was sufficiently serious such that it did not warrant any further inquiry, and provided sound basis for the immediate dismissal of the applicant." In relation to the procedural unfairness of the process followed by Home Care, the Commission observed - "the employer’s move to immediately invoke dismissal meant that the applicant was denied an opportunity to respond or provide some explanation that may have militated against dismissal. Hypothetically, what if the behaviour of the applicant was caused by some unforeseen reaction to prescription medicine? Or what if the applicant was experiencing severe emotional distress as a reaction to the unexpected death of a beloved pet? In this instance, no evidence has been provided which might have established some reasonable explanation for the applicant’s serious misconduct. However, the absence of due process is a factor that may establish that the dismissal was unreasonable. The procedural defect in this instance must be balanced against all other factors, particularly the existence of valid reason for dismissal." You can read the full decision here. Commentary Both these cases demonstrate that the failure to conduct a procedurally fair workplace investigation does not - of itself - establish that an employee's dismissal was harsh, unjust or unreasonable. However, in both cases, the outcome may well have turned on how the dismissed employees presented at the hearing. Mr Liu did not demonstrate that he understood the significance of the allegations put against him or why the employer (rightly) regarded the issue so seriously. And Ms Hanna apparently failed to apologise or offer any explanation for her behaviour. Had they responded differently to their dismissals, the Commission's decisions may well have been reversed. A decision from the Fair Work Commission yesterday highlights the importance of asking open questions when conducting an investigation. If you cross-examines witnesses by asking leading questions, there is a real risk of the evidence before you, and consequently your findings, being unreliable.
The decision yesterday in Crowley v Trustees for the Roman Catholic Church, Archdiocese of Canberra and Goulburn involved an incident that occurred during a school excursion. A number of year 9 students ended up in difficulty after a kayaking trip went wrong. Happily, none of the students suffered any major injuries. An external investigator was appointed to investigate the incident and determine whether there had been any misconduct by the teacher supervising the class. The investigator ultimately determined that that misconduct had occurred and the school then decided to dismiss the teacher, Mr Crowley. At the hearing of Mr Crowley's unfair dismissal application, evidence was given by Mr Crowley, an assistant teacher who was with the group and many of the students involved. Both Mr Crowley and the assistant teacher gave relatively consistent versions of the events. Perhaps unsurprisingly, the students' recollections varied widely. Counsel for Mr Crowley challenged aspects of the investigator's report and the way in which evidence was obtained. He submitted that - "The students are led very heavily and often when an answer is given that appears either to support something which the applicant had said or which appears to not really follow the line in which the investigator was tracing in his leading questions, the investigator either shuts down the questioning or steers if off in a different direction. It is regrettable and the only reason I mention it is it will come to explain why some of the students’ evidence in these proceedings was quite different to what was before the employer." The FWC decided that the evidence did not support a finding of misconduct. In her decision, Deputy President Dean observed that - "I have already expressed a concern as to the leading nature of the questions initially asked of the students by the investigator, and which helped inform the decision ... to dismiss Mr Crowley. Given the issues already noted about the veracity of the students’ evidence, I prefer the evidence of Mr Crowley and [the assistant teacher] to the extent there is any inconsistency with the evidence of the students." |
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