четверг, 11 июня 2015 г.

Австралия (трудовые отношения). Работник шахты пожаловался бригадиру на дугового работника, утверждая, что последний угрожал насильственной расправой. Компания, в связи с данной жалобой, начала внутренние расследование, в ходе, которого были опрошены 30 работников Компании, имевших отношения с подозреваемым работником. Итоги этих опросов выявили множество реплик, которые были высказаны в адрес работников подозреваемым работником, и которые носили явный характер, а также были очень ненормативные лексично. Из текста публикации явно не понятно, что ответил на данные заявления подозреваемый работник. Написано, что он отверг практически все обвинения. То есть, не понятно: он отрицал, что имели место угрозы, либо просто занимал позицию, что эти угрозы носили незначительный характер? Данный работник был уволен, а затем восстановлен по решению Комиссии по защите прав работников. Комиссия установила, что угрозы были незначительны для того, чтобы стать причиной дисциплинарного взыскания. Что они имели стиль обычного поведения работников такого рода, как заявил один из свидетелей.

Portner Press LogoHomeAbout UsTwitterLinkedIn
HS Bulletin logo
Wednesday 10th June 2015
Where workplace investigations 

go wrong: one employer’s hard 

In today's Workplace Bulletin:
  • Case Study: FWC reinstates employee despite bullying claims
author image
Dear Reader,
On the surface, a lot of dismissals for misconduct look pretty straightforward.
If somebody has done something seriously wrong – think fraud, assault, theft, or intimidation – it’s easy to think that your actions are the right ones, no matter what. Some actions are so serious they justify your immediate response.
And if other people have been the victims of an employee’s misconduct, you’ll be feeling the pressure to keep them safe and well.
But you need to take a deep breath…
A workplace investigation shouldn’t usually involve the same standard of forensic detail that a police investigation or a court hearing might. But the same fundamental principles of natural justice apply.
In the rush to deal with what seems like unacceptable employee behaviour, it’s easy to forget that they still have the right to answer the allegations put to them, and the right to explain themselves.
And it’s easy to forget to sit down and take the time to give the evidence you’ve gathered a good, hard look.
But if you don’t take these simple actions at the time, it’s nigh-on impossible to put things right later on.
Today I take a look at a recent Fair Work Commission case where BHP Billiton’s dismissal of an employee for misconduct was found to be harsh, unjust and unreasonable.
More than that – they ordered that he be reinstated to his old role.
I think we can agree that BHP isn’t a mum-and-dad employer muddling through a disciplinary procedure over the weekend, so in some ways a result like this can be surprising. If they can’t get it right – what hope is there for you?
Plenty, as the case may be. It’s always worth looking at what went wrong in a case like this. And then anyone, with care and attention, can figure out what to do right.
Click here to find out how to make sure you’re fully equipped to conduct an effective workplace investigation - without creating any legal risks for your business.
Case Study: FWC reinstates 

employee despite bullying claims

A decision in the FWC last month, Fitzpatrick v Mt Arthur Coal Pty Ltd [2015] FWC 2243, shows how a number of seemingly minor omissions in a workplace investigation can stack up and lead to an unfair dismissal – even for a big employer with sophisticated HR procedures.
What were the facts?
The employee, Mr Fitzpatrick, was a shotfirer at a BHP Billiton coal mine. In July 2013, another employee. Mr Jenner, approached the production superintendent of the mine and said Mr Fitzpatrick had made violent threats toward him.
After interviewing Mr Jenner at length, the mine commenced a full investigation. More than 30 employees were interviewed, before the allegations were put to Mr Fitzpatrick in writing.
They included a number of explicit and violent remarks made to co-workers – most of them not appropriate to repeat in an email like this.
Mr Fitzpatrick denied virtually all the allegations in a meeting. His employer subsequently decided that the allegations were substantiated and serious, invited him to show cause for the conduct, and then dismissed him without notice.
Mr Fitzpatrick filed for unfair dismissal, saying that he had been denied a fair procedure by his employer and that all allegations were either fabricated or exaggerated.
What was the outcome?
Mr Fitzpatrick took issue with the fact that he received a summary of allegations, but not written statements from the co-workers who had claimed they were bullied and harassed.
In fact, there were no such statements – formal records of interviews had not been made, and the first time Mr Fitzpatrick had the chance to consider the complete materials relied on by his employer was the FWC hearing itself.
Crucially, the original complainant, Mr Jenner, refused outright to give evidence at the FWC hearing. And a number of co-workers who had been interviewed during the investigation took issue with how their original evidence had been interpreted when put to Mr Fitzpatrick as allegations.
For example, although some of Mr Fitzpatrick’s co-workers confirmed he had sworn at them, they did not consider it a matter of bullying, harassment or intimidation. Rather, it was the kind of coarse banter many employees engaged in from time to time.
The FWC found that the employer had not corroborated a number of the allegations Mr Jenner had made, and therefore not substantiated the misconduct.
Mr Fitzpatrick wanted to be reinstated to his old position, something his employer opposed. The FWC found that his long and otherwise unblemished employment record and the view of his colleagues that they would work alongside him again favoured his return to work.
An order was also made that BHP Billiton pay him lost wages from the time during his dismissal.
What can you learn?
Mr Fitzpatrick’s employer most likely leapt into action when it received notice of the allegations against him.
And they were right to act promptly. The bullying and intimidation described would have been a serious health and safety risk, and serious misconduct – if proven.
If you’re ever in a similar situation, remember these key takeaway points:
  • It is essential that you attempt to corroborate a complaint against an employee before forming a conclusion about whether or not it is true. This is especially important where a complainant is describing things they saw done or said to others.
  • When interviewing participants as part of a workplace investigation, make sure that your questions are open-ended, simple, neutral, and relevant to the allegation being investigated.
  • Consider the most appropriate way to record an interview. In this case, the written notes from the interviews were challenged later on by several participants.
If this happens, it will be very hard to rely on those notes to substantiate your case – or even recall conversations for your own benefit!
Hard investigations made easy
Mistakes like these aren’t the hallmark of a bad employer. They’re a reflection of how hard it is to get an investigation right. Often, it takes employment and HR professionals at the top of their game to run a gold-standard investigation.
That’s why we had three of them write an e-book for us.
I’ve only looked at one possible scenario today, but Effective Workplace Investigationsis a 292-page eBook that runs you through every step of a fair and lawful workplace investigation.
As the only up-to-date and comprehensive guide of its kind in Australia – prescribed to law school students, endorsed by the Australian Human Resources Institute - it usually retails for $395.
But until the end of the financial year, we’re cutting it back to $295.
So if you’re looking to make one of an employer’s hardest jobs a lot easier, now might be the time.
Until next time,
J. Nunweek signature
Joseph Nunweek
Editor, Workplace Bulletin
ELH Bulletin trial banner

Do you have a colleague or friend you think will benefit from today’s Workplace Bulletin?
Knowledge is one of the biggest assets in any business. So why not forward this on to your friends and colleagues so they too can start taking advantage of these employment law tips?
Check out our other free bulletins
H&S Bulletin iconCoR Adviser Bulletin icon
Twice–weekly tips, tools and strategies to make sure you stay on top of health and safety laws. Click below for an immediate free subscription.
Practical advice that will help ensure you comply with all your CoR and road transport obligations. Click below for an immediate free subscription.
H&S Bulletin Signup buttonCOR Adviser Bulletin Sign Up

Please whitelist the Workplace Bulletin to make sure you get every edition delivered to your inbox.
The information in this email is intended solely for the addressee. Access to this email by anyone else is unauthorised. If you are not the intended recipient, please return the message to the sender and delete it from your records. All content is © 2007-2015 Portner Press Pty Ltd All Rights Reserved.
Disclaimer: We research our recommendations and articles thoroughly, but disclaim all liability for any inaccuracies or omissions found in our publications. Click here to view our Privacy Policy and Terms and Conditions.
Queries: For general enquiries, email cs@portnerpress.com.au or call 1300 782 911.
Workplace Helpdesk: Paid subscribers to the Employment Law Handbook can ask our experts for advice.
Syndication: To republish a Workplace Bulletin article, please email cs@portnerpress.com.au for information.
Workplace Bulletin ISSN 1836-117X
Portner Press Pty Ltd
96-98 Bridport Street
Albert Park VIC 3206