AMMA Principal Workplace Relations Consultant Peter Cooke (pictured) reviews a recent Fair Work Commission (FWC) decision which highlights the risks to employers relying on a poorly conducted workplace investigation or following defective performance management processes.

AMMA Principal Workplace Relations Consultant Peter Cooke

In this case, a childcare centre received an anonymous complaint about a staff member and her alleged treatment of a child in the centre’s care.

Background

The employee tendered her resignation on 3 May 2018 as she had been offered a job at another childcare centre in the regional town. The anonymous complaint was received on the same day and related to an alleged incident on 2 May 2018.

The owners of the childcare centre stood the employee down on 3 May and commissioned the facility’s supervisor to begin interviewing staff about the alleged incident.

On 4 May 2018, one of the centre’s owners requested the employee attend a meeting at 5pm that day. The employee requested written advice as to the allegations raised against her and 24 hours’ notice to arrange a support person to attend the meeting.

The centre’s owner refused both requests and the meeting did not take place as the employee declined to attend.

The employee was dismissed in a letter sent to her by email on 7 May 2018. At this point the investigator had not yet spoken to all of the employees who were working at the childcare centre of the time of the alleged incident or to the employee concerned.

The investigator did not speak with all of the employees concerned until 14 May 2018.

An application alleging unfair dismissal was filed by the dismissed employee in the FWC.

The hearing occurred in December 2018, involving the former employee, the two co-owners of the childcare centre and six of the childcare centre’s employees.

This shows the extent of resources (both time and costs) that an arbitrated hearing in the FWC requires, ignoring the preparation involved in gathering witness statements and other pre-trial processes.

Decision

Deputy President Sams found the investigation into the alleged incident was flawed and hastily conducted.

It was found the former employee was denied procedural fairness on a number of grounds, including the former employee being denied her request for 24 hours’ notice of the performance management meeting in order to bring a support person to the meeting.

Other flaws included that the former employee was not given written details of either the anonymous complaint or the allegation against her.

The decision to dismiss the employee was made before the investigator spoke to the former employee or a witness whose account supported the former employee’s version of the events.

Deputy President Sams also found the employer made a hasty decision about the alleged actions of the former employee but did not give the former employee a fair or reasonable opportunity to respond.

It was not clear to Deputy President Sams why the employer continued the investigation a week after they had dismissed the employee.

The employer also wrongly took the former employee’s unwillingness to attend the performance management meting as a refusal, when it was in fact a request for reasonable notice of the meeting to be given.

During evidence at the hearing, it emerged the anonymous complaint had actually been lodged by a co-worker, who when the former employee was acting as a supervisor had been spoken to about having personal packages delivered to the workplace and the behaviour of his son, who also attended the childcare centre.

The evidence also showed that there was a conflict between the recollections of the witnesses to the alleged incident and the manner in which the investigation had been carried out did not lead to a situation where a positive finding of misconduct by the former employee could be made.

Deputy President Sams found the dismissal was unfair both as it was not carried out for a valid reason but also because the procedure followed by the employer was “manifestly unfair”. The former employee had gained employment after her dismissal and was not seeking reinstatement. She was awarded $11,860 in compensation.

AMMA workplace relations consultants have extensive experience in both conducting effective workplace investigations that meet the test of procedural fairness and advising on all aspects of employee performance management up to and including termination of employment. For advice on any of the themes or matters within this decision, contact a workplace relations specialist at your local AMMA office.