ERA finds company failed to follow own policies when investigating bullying allegations
The Employment Relations Authority (ERA) found that a sales team member was unjustifiably disadvantaged and dismissed when her employer failed to adequately investigate workplace complaints and subsequently terminated her employment for alleged abandonment without proper consideration of her circumstances.
The worker claimed she was bullied and harassed by coworkers, had personal items sold without consent, and faced discrimination based on her medical condition.
The company argued it conducted a thorough investigation that found no substantiation for the complaints and that the worker had abandoned her employment by failing to attend work for extended periods.
Employment background and workplace concerns
The sales team member was employed at an automotive parts retailer from March 2023 until her termination on 2 September 2024.
Throughout her employment, she had significant absences due to medical reasons and was frequently late to work.
The ERA found she acknowledged being absent frequently and could not specify how many days she worked in June or July 2024.
In late July 2024, the worker raised concerns with branch management about her treatment at work, including claims she was undermined, treated unfairly, harassed and bullied by coworkers, constantly criticized, and discriminated against based on her arthritis diagnosis.
She also alleged that personal items she had ordered, including Milwaukee hoodies and a fuel pump, were sold by other employees without her knowledge.
The worker's former representative raised a personal grievance on 29 July 2024, leading to the cancellation of a scheduled meeting between the worker and branch management.
The company's People, Culture & Wellbeing Business Partner took responsibility for investigating the complaints and requested further specifics to conduct a thorough investigation.
Investigation process and identified deficiencies
The company investigator interviewed seven coworkers and branch management between 2 and 9 August 2024, including the five coworkers against whom specific allegations had been made.
The investigator described this as interviewing team members based on concerns raised on the worker's behalf, using general questions about workplace culture rather than putting specific allegations to named individuals.
The ERA found multiple deficiencies in the investigation process. The investigator did not refer to relevant company policies when deciding what process to follow, did not provide these policies to the worker or her representative, and constrained the worker's ability to engage with the investigation.
The Authority determined specific allegations should have been put to named coworkers as required by company procedures.
The ERA also found that the investigator's conclusions about disputed items were made without adequately investigating the differences between the worker's account and the limited evidence gathered from coworkers.
The Authority determined a fair and reasonable employer would have given the worker a meaningful opportunity to respond to gathered information before making final decisions about her complaints.
Investigation outcome and abandonment dismissal
The company concluded its investigation on 9 August 2024, finding it was "unable to substantiate any behaviours or incidents that would amount to disadvantage" and that employee accounts of workplace culture were "extremely positive."
The investigation acknowledged the worker had likely been yelled at by one coworker, but considered this had been handled appropriately at the time.
The company noted the worker's extensive absences and failure to attend five consecutive shifts without communication, stating this "could be considered abandonment of employment."
When the worker's representative requested mediation on 13 August 2024, the company declined on the grounds that it considered its actions fair and reasonable and advised the worker had no annual leave available.
On 20 August 2024, the company warned the worker her employment would be terminated for abandonment if she did not confirm her return to work by 26 August 2024.
Despite multiple deadline extensions and offers of alternative work locations, the company terminated the worker's employment on 2 September 2024 for abandonment after she failed to return to work for 23 consecutive shifts.
ERA findings on disadvantage and dismissal
The ERA found the worker was unjustifiably disadvantaged by the company's inadequate investigation of her workplace complaints.
The Authority determined the investigation did not follow company policies requiring allegations to be put to respondents in full and giving them the opportunity to defend themselves, while failing to adequately investigate disputed facts between different accounts.
The ERA also found the company acted unfairly by not disclosing that senior managers, including the General Manager, would be decision-makers in relation to the complaint outcome.
The Authority determined that this lack of transparency about the decision-making process further disadvantaged the worker's ability to engage with the investigation.
Regarding the dismissal, the ERA found the company did not act as a fair and reasonable employer when terminating the worker's employment for abandonment.
The Authority noted the company was aware of why the worker was absent, knew she was progressing with personal grievances about her original concerns, and had indicated willingness to discuss alternative work locations before requiring a response within less than 24 hours.
Compensation assessment and contribution reduction
The ERA awarded the worker three months' lost wages, calculated at 15 hours per week, based on medical evidence showing her capacity to work was limited to fewer than 15 hours weekly due to anxiety and arthritis.
The Authority declined to award lost wages beyond three months, finding insufficient evidence of efforts to obtain further employment after this period.
For compensation, the ERA made a global award of $18,000 for both unjustified disadvantage and dismissal claims, considering the overlapping impacts of the company's actions, including anxiety, stress, and loss of trust.
The Authority found this amount appropriate based on the worker's evidence and comparable cases.
However, the ERA reduced the total compensation to $15,000 after finding the worker contributed to both situations through limited communication during the investigation process and failure to adequately engage regarding her non-attendance at agreed-upon alternative work locations.
