Приведенное дело интересно тем, что
судья сказал, что «it was “quite possible, indeed likely” that the worker may have intended to hit his colleague, it was not necessary to determine the worker’s intent» (вполне возможно, действительно вероятно,
что работник имел намерение ударить своего коллегу, и поэтому нет необходимости
принимать во внимание намерение этого работника».
То есть, мы здесь видим
критерий «quite possible, indeed likely», когда объективные факты
настолько точно могут отражать субъективные факты, что показание человека о
том, что он думал, перевешивается показаниями других людей о том, что думал
этот человек.
Как известно, от того, что
думал человек, зависит, был ли он виновен в совершении правонарушения или нет. Как
известно, человек может дать ложные показания о том, что он думал. И определить
ложные эти показания или истинные помогут показания других людей либо факты о соответствующих
событиях.
В данном деле работник испачкал
краской другого работника (оставив пятна сзади на шее и рабочей одежде со
стороны спины). Ему не поверили, что он сделал это ненамеренно, что он сделал
это случайно, потому, что, по его словам, не мог проветрить о стенку как работает распылитель
краски и вынужден был направить струю краски не на стену, а вовнутрь помещения.
Причем, другой работник, по словам нарушителя, попал под струю случайно на расстоянии
4-х метров.
Данное дело было осложнено еще
тем, что в компании происходило сокращение штата с выплатой компенсации,
однако, данного работника уволили не по сокращению штата, а по другому
основанию (за нарушение внутренних норм компании) без выплаты компенсации.
Интересно также заметить, что,
во всяком случае, в публикации не подымается вопрос о том, нарушал ли работник
правила охраны труда, когда периодически испытывал распылитель, направляя струю
краски вовнутрь помещения. Ведь делал он это потому, что объективно не мог
воспользоваться стенкой.
То есть, дело интересное и
найти его документы можно по данным, приведенным в ниже помещенной рассылке.
- Horseplay leads to dismissal before big redundancy payout
- Investigating employee misconduct: 5 key issues for you to consider
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Andrew Hobbs
Monday 16 October, 2017
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Horseplay leads to dismissal before big redundancy payout
ONE incident of reckless ‘horseplay’, in which an assembly line worker sprayed a co-worker with paint, is enough to justify dismissal, the Fair Work Commission (FWC) has found.
The fact that, in this instance, the dismissal means the worker is ineligible for a generous, company-wide redundancy scheme does not make the dismissal unduly harsh, FWC Deputy President Peter Anderson found.
The worker was an 18-year employee of Tenneco when he was dismissed on 7 June, four months before the company was due to stop taking new customers.
Tenneco, which manufactures motor vehicle exhaust systems, had set out a plan to close down as the Australian automotive assembly industry came to an end.
FWC Deputy President Anderson heard that the worker was dismissed after a workplace investigation found he had intentionally sprayed a co-worker’s back and exposed neck with a stream of paint on 11 May.
The worker argued in court that he did not intend to hit the co-worker, but had decided to test out the gun into open factory air as he could not get access to a wall where water was constantly running, as was his standard practice.
He had adjusted the paint nozzle to shoot the paint in a stream, rather than a fine spray, when doing that test, causing the paint stream to shoot four metres before hitting the other worker.
Tenneco’s human resources manager commenced an investigation on 15 May after receiving a written complaint from the employee who was hit.
The worker was suspended the next day, following an interview with the HR manager. He was later dismissed on 7 June after an appeal to the company’s human resources director failed.
The reason given by the company was ‘serious and wilful misconduct’, with the director adding that “your actions amount to horse-play and are unacceptable and in breach of your employment contract.”
Deputy President Anderson said that while it was “quite possible, indeed likely” that the worker may have intended to hit his colleague, it was not necessary for him to determine the worker’s intent.
“I find without any reasonable doubt that on 11 May [the worker] was recklessly indifferent in the way he used the gun and pulled the trigger to test the flow of paint,” he said.
“The serious misconduct was contrary to company policy concerning the safe use of spray guns… It was conduct that constituted a valid reason for summary dismissal given the risks to health, safety and welfare, the duties of employers and employees in that regard and the hazardous nature of paint striking a person.”
Deputy President Anderson added that dismissal for this action, “even if seen as a single act”, was not a disproportionate response, due to the potentially damaging effects the paint could have on a person’s health.
Redundancy plays no role
While noting the worker’s complaint that his dismissal in June meant that he was ineligible for the significant redundancy payment being made to his former co-workers this month, Deputy President Anderson said it could have no impact on his decision.
“The financial hardship and potential financial hardship compared to what might have been do not outweigh the conduct in breach of policy or act to sufficiently transform his dismissal for a valid reason into one that can be characterised, at law, as harsh,” he said.
Horses for courses
Choosing to dismiss an employee is rarely an easy decision. It can often expose you to legal risk – which is why it is critical to know that any decision to dismiss an employee is a lawful one.
In the case above, Tenneco conducted an internal investigation, checked against its policies and procedures, and determined its only course of action was to summarily dismiss the worker.
The FWC agreed.
Would you be confident your procedure to dismiss an employee would withstand the scrutiny of the FWC?
If you are in any doubt, you need the comprehensive 57-page Managing Lawful Dismissal eBook, written by employment law expert Charles Power, which guides you through what you must consider before dismissing an employee.
Topics covered in the eBook include:
- What makes dismissal unlawful.
- Management procedures for dismissal.
- Alternatives to dismissal.
- Notice and termination pay requirements.
Don’t make a decision without having first consulted the Managing Lawful Dismissal eBook – it can help you to avoid costly exposure to penalties associated with unfair dismissal. Get your copy individually, or as part of a limited time offer, purchase it as part of a bundle of six of our most popular eBooks, at a 30% discount.
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Dismissing an employee can be a legal minefield. Are you 100% sure you’re clear on all the rules?
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Investigating employee misconduct: 5 key issues to consider
ENSURING you conduct a reliable, independent and fair workplace investigation into employee misconduct can be challenging, with a number of potentially thorny issues to be confronted. Worklogic consultant Tom Henry boils it down into five key points:
1. How should you respond to the complaint?
If you become aware of inappropriate behaviour (e.g. through informal reports or gossip) that causes a real risk to the health and safety of your employees, you must take steps to minimise these risks, including by investigating and taking appropriate disciplinary action. A useful question to consider is: if the alleged conduct was proven, would it breach a policy or law?
Normally, the investigation process will be set out in the employer’s grievance policy, but specific terms in the parties’ employment contracts or other external regulations may apply – be sure to check all relevant documents before commencing a formal investigation.
If the alleged victim refuses to act as a complainant, the employer can bring an investigation and ask the complainant to participate as a witness. If more needs to be known about the concern before launching a formal investigation, consider a cultural review or preliminary investigation. If the alleged behaviour is less serious, you may consider:
- mediation;
- facilitated discussion; or
- coaching or training employees in appropriate behaviour
2. Is there sufficient detail to the complaint?
The allegations must include details of a specific event, comment or act for a person to respond to.
Generalisations (e.g. describing a certain type of behaviour as occurring “constantly”) are not acceptable, whereas saying it occurred “daily at lunchtime in the common room” is acceptable.
The alleged behaviour must also be described accurately. This may include an alleged intention if it is central to the breach of policy, e.g. where the conduct is deliberate or reckless.
In the case of bullying allegations, the alleged victim should indicate why the alleged conduct is said to be unreasonable.
3. Does the respondent have a reasonable amount of time to reply?
Natural justice requires that the respondent has adequate time to prepare a response to the allegations. In practice, what is adequate in the circumstances is dictated by:
- the number of allegations;
- how long or complicated they are;
- how old they are; and
- what documentation the respondent might need to respond to the allegations.
If the respondent requests more time to respond (e.g. due to illness or to seek advice), this must be balanced against the complainant’s right for the investigation to be completed in a timely manner. This will depend on the circumstances.
However, if there is excessive delay in attending an interview without a reasonable excuse, or if the respondent is given adequate opportunity to participate, the investigation may have to proceed without the respondent’s participation.
4. What role does a support person play in an interview?
For evidence given in an interview to have value, it must be given in the party’s own words.
While a support person may be present, they should not participate in an interview – and there is generally no obligation to allow an employee to have an advocate – as distinct from a support person – during this time.
In practice, where a respondent’s support person is also their legal or union representative, the support person may wish to play the role of advocate outside the interview.
This can be accommodated as long as it does not interfere with the interview itself. You may wish to consider:
- Allowing the parties to call for a break at any time in order to discuss matters privately between themselves;
- Allowing the lawyer or union representative to make a statement or submission on their client’s behalf at the end of the interview;
- Allowing the investigator to politely intervene when a boundary has obviously been crossed.
5. Does the report make any recommendations?
Investigation reports should be confined to findings of fact and must not include any recommendations or decisions regarding disciplinary action in relation to any proven allegations.
It may be reasonable for an investigator to comment on any proven allegations in the report as to whether the behaviour appears to breach a relevant policy or law. This may include determining whether the proven behaviour was unreasonable (e.g. bullying) or unwelcome (e.g. sexual harassment).
One last thing
If you are considering terminating an employee for misconduct, you should be certain of the process you need to undertake to be able to successfully defend a potential unfair dismissal claim.
Before you make any decisions regarding an employee’s future at your company, make sure you read Managing Misconduct.
Managing Misconduct is a 78-page eBook that will:
- explain what misconduct is;
- outline how to develop and implement workplace policies and procedures to assist in managing employee behaviour;
- outline how to investigate allegations of misconduct;
- consider the legal risks of disciplining or dismissing an employee for misconduct; and
- discuss how to reduce those legal risks.
Written by Holding Redlich employment law partner Charles Power, Managing Misconduct provides the clear, plain English guidance you need to effectively respond to inappropriate workplace behaviour. Get your copy individually, or purchase it as part of a set of our six of our most popular eBooks, available at a 30% discount for a short time only.
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If you ever have to manage misconduct in your workplace, there are six crucial things you need to consider.
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