Termination without an investigation is risky

by HCA29 Jul 2013

How an employee is terminated can be a minefield, with many employers finding themselves before the Fair Work Commission because they got it wrong. In this first of a series on common employer mistakes, HC looks at terminating without a preceding investigation.

A claim for unfair dismissal is an accessible and cheap process for many employees, which can end up costing employers a lot of time and money. Richard Ottley, partner at Swaab Attorneys, said in a recent opinion article that one key pitfall lies in failure to conduct an appropriate investigation and failing to comply with natural justice requirements. This can significantly assist in the defence of unfair dismissal proceedings.

Employers must ensure careful documentation of all investigative processes, particularly if they may have disciplinary consequences such as termination. It is also important to warn employees that their conduct may lead to dismissal.

Swaab Attorneys cited a recent case. In Read v Gordon Square Childcare Centre Inc T/A Gordon Square Early Learning Centre [2012] FWA 7680, an employee at a childcare centre was the subject of a parental complaint. A parent complained that their child was left unattended when upset by the employee, was not given breakfast, and on another occasion had been allowed to play with electrical outlets. This complaint was investigated by the childcare centre management.

The investigation concluded that the employee had admitted she left the child unattended and that this was a failure to supervise and constituted a breach of childcare regulations. This was deemed misconduct which was not compatible with the employee's employment continuing with the employer. The employee was summarily dismissed on the basis this constituted serious misconduct.

It was significant that the employee was not warned that her conduct could result in termination. Commissioner Bissett concluded the employee did leave the child unattended and unsupervised. This was a breach of the National Law and the centres Supervision Policy. Comm. Bissett also accepted that the employee had previously allowed children to play under her reception desk where there were wires.

The evidence was that the employee was informed that her non supervision of a child was the reason for terminating her employment. The childcare centre afforded the employee procedural fairness in the process of investigation because they had presented the allegations, allowed her to respond and then made a finding which in turn was communicated to her. The employee was also allowed a support person at both meetings with the employer. While previous discussions about performance did not constitute warnings, ultimately Commissioner Bissett concluded that summary dismissal was fair.

 

For further workplace law insights visit www.swaab.com.au

COMMENTS

  • by RivercityIR 30/07/2013 2:06:39 PM

    First mistake is employers investigating complaints themselves. Whilst it is sometimes cost prohibitive, an employer needs to engage outside investigators to do it. Employers are naturally too close to staff, and in this instance, parents.

  • by Judy 30/07/2013 4:46:45 PM

    In my opinion it's not always necessary to involve external investigators. It depends what has allegedly occurred, who was allegedly involved and the seriousness of the alleged incident/issue. Detailed notes, a thorough investigative process and, as the article points out, providing all those involved with procedural fairness, natural justice and respect goes a long way to ensure the right outcome.

  • by Joey 31/07/2013 3:41:48 PM

    I agree with Judy, it is not necessary for employers to use outside investigators evertime there is a complaint. Investigation skills should reside within the organisation.

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