Are you drafting allegations and findings for an employee response? Lisa Burrell outlines what you need to know
While most Australians will read some form of information on a day-to-day basis, few individual documents are scrutinised as heavily as those involved in employment proceedings, including disciplinary and dismissal letters.
For the recipient, any letters are likely to be analysed as a response is considered and formed, reviewed for weaknesses and exaggerations, and utilised if later formal proceedings ensue. Working with many businesses, as well as considering findings as they come out of the courts and tribunals, the Victorian Chamber views the following as representing the key areas employers should focus on from the outset in drafting allegations and findings for an employee response.
Prior to proceeding, confirm that further action is actually warranted
(and that your systems are robust enough to incorporate these checks). Typical examples of where further investigation may not be required include employee complaints about a supervisor, in instances where, if the allegation is taken as reported, the supervisor is found to be simply following process.
Do not overstate the matter,
for example by stating upfront that an employee has ‘intentionally’ or ‘repeatedly’ breached a rule, if the evidence to date may not support more than the breach itself. Equally, categorising behaviour as ‘illegal’ or a breach of legislation may set a higher bar than is useful or necessary. Finally, employers should resist the urge to label behaviour if the complainant has not done so – in recent times, this particularly attaches itself to classifying a complaint as bullying, which then may bring in additional considerations of risk to health and safety, as opposed to saying that inappropriate or unacceptable behaviours have been complained of.
Consider listing single breaches, rather than grouping multiple allegations or incidents.
While this doesn’t often ‘make or break’, it can make it more difficult to manage later communications and processes when only parts of a matter from an initial report are found to have occurred. Some policies and industrial instruments can also bind employers to issue a ‘finding’ on each allegation, meaning that where only one of the incidents described in an allegation has occurred, the employer may be left with a finding of ‘unsubstantiated’ due to poor framing.
Be cautious of ‘lingo’ in your allegations or documents.
One well-known example of this came from the case where an employee breached a behavioural rule on ‘backbiting’, where multiple interpretations of what it actually meant were advanced in the unfair dismissal hearing – with the case ultimately going against the employer.
Determine the tests or evidence required to substantiate the behaviour.
This is a useful internal check for employers and will often lead to a reframing of wording. A simple illustration of this is where an initial draft of an allegation contains set times, wordings, or actions that may ultimately weaken the process. Instead, consider reframing as ‘on or about’ (date/time) or ‘words to the effect of ’; and limiting the strength of words (eg ‘struck’ rather than ‘punched’) may also be useful.
If it appears that a policy or procedure has potentially been breached, consider whether this is the true issue, or an additional matter.
This can be important in situations where a policy is ultimately found not to have been breached, however the behaviour is still inappropriate in and of itself. In particular, early consideration around exact policy wording and evidence required can save a great deal of time and angst during later stages.
The actual breaches or matters that an employee is being disciplined or dismissed for can usually be categorised once any investigation is completed, and in line with procedural fairness these can then be put to the employee for response before making any final decisions.
Lisa Burrell is the general manager of the
Victorian Employers' Chamber of Commerce and Industry (VECCI). VEECI is Victoria’s most influential employer group, servicing over 15,000 Victorian businesses per annum. An independent, non-government body, VECCI was founded in 1851 by the business community to represent business.