Home' HR Monthly : October 2014 Contents October 2014 HRMonthly 51
Charles Power is a par tner
at law firm Holding Redlich,
practising in employment
and industrial relations.
This article is part of a four-
par t series on termination.
Head to HRM online to
read more from Charles
Power about bullying and
In the event that you might
be exposed personally
to litigation due to your
HR activities, as an AHRI
professional member you’re
by AHRI’s professional
indemnity insurance policy,
Managing employee misconduct requires
careful attention to detail.
BY CHARLES POWER, HOLDING REDLICH
Managing employee misconduct requires
Taking appropriate action to manage misconduct by
employees is important to avoid legal consequences.
For example, an employer’s disciplinary process may
lead to a constructive breakdown of employment if it
puts the employee’s health and safety at unacceptable
risk, or exposes the person to unreasonable reputational
risk due to lack of con fidentiality. This may be the
case if the process is unfair or prolonged, or otherwise
conducted in an unreasonably aggravating manner.
In Goldman Sachs JBWere Services Pty Ltd
v Nikolich in 2007, the Federal Court ruled the
employer’s delay in taking appropriate steps to deal with
alleged workplace harassment and bullying amounted
to a breach of the employer’s obligation to maintain a
safe and healthy work environment.
A breach of this obligation would entitle employees to
consider themselves to be constructively dismissed.
In the case Harley v Aristocrat Technologies
Australia Pty Ltd in 2010, an executive claimed she
was forced to resign because of the employer’s failure
to properly investigate bullying and harassment
complaints. Instead of trying to resolve the complaints,
the employer instituted a performance management
process, which the tribunal ruled was unjustified.
The employer was found to have initiated the unfair
termination of employment. The claimant was awarded
compensation of six months’ pay.
A disciplinary process itself may also be considered
workplace bullying under the new anti-bullying scheme
in the Fair Work Act 2009, if it’s judged to cause a
safety risk. This can be avoided by informing a worker
about inappropriate behaviour in an objective and
How to manage bullying allegations
HR practitioners can use this checklist to ensure
they’re handling allegations of misconduct fairly,
thereby avoiding the risk of constructive dismissal.
Design a process to give the accused employee
sufficient information about the allegations and
a fair opportunity to respond. If the employee
would prefer to provide a written response, this
should be allowed.
Suspend the accused employee only if the allegations
are sufficiently serious, the employee is likely to
interfere with any investigation, or the employee’s
presence in the workplace may cause harm to the
business. A suspended employee must receive full
pay during the suspension unless the legislation or an
enterprise agreement says otherwise.
INDEPENDENCE OF THE INVESTIGATOR
The person tasked with determining the allegations
must be able to act fairly and impartially.
THE ACCUSED MUST COOPERATE
Generally, an employee must cooperate with the
investigation in a timely and constructive way. Failure
to do this may be considered misconduct in itself.
DON’T DEL AY
The investigation should not be unduly protracted, to
avoid stress for all parties involved.
RESPOND TO FINDINGS APPROPRIATELY
The person who determines the action to be taken
should not prejudge the outcome of the investigation
and should seek a response from the accused about the
findings before making a fi nal decision.
October 2014 HRMonthly 51
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