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Workplace Investigation Procedural Fairness

Workplace Investigation Procedural Fairness – Decisions at the Fair Work Commission where a lack of procedural fairness has proved is costly once again

Two cases before the Fair Work Commission once again highlight that organisations are still having dismissal found as unfair due to a failure to afford an employee procedural fairness
In Schneider v Eliana Construction and Developing Group P/L [2016] FWC 5748  23 August 2016, the applicant Mr Schneider was employed as finance manager; he was dismissed for unsatisfactory conduct. The respondent claimed actions of applicant in submitting BASS statements without Director’s approval caused significant harm to company.
The Commission found that there was no valid reason for dismissal, that the applicant was not put on notice that employment at risk concerning either conduct or performance, he received no written or verbal warnings made and that there was an absence of procedural fairness. It was held that the dismissal unfair and compensation of $16,816 was ordered.
In Moore v Specialist Diagnostic Services P/L t/a Dorevitch Pathology [2016] FWC 5910 23 August 2016, the applicant Ms Moore was employed from July 2003 until April 2016 as pathology collector and promoted to collections co-ordinator. According to a termination letter she was dismissed for failing to follow reasonable directions
The commission found that the applicant not given clear and unambiguous opportunity to respond to reasons for dismissal and that the respondent’s decision maker not given all information to make decision.
In finding that there was no valid reason for dismissal, that the dismissal harsh, unjust and unreasonable and that the applicant was unfairly dismissed the Commission found there was lack of procedural fairness and uncertainty regarding respondent’s reasons for dismissal compensation of $27,900 was ordered.
The lesson for employers - If termination is being contemplated as an option, employers should consider an investigation to establish the full facts of the matter and provide the employee with the opportunity to respond in a timely manner.
The author Phil O’Brien is a highly experienced and skilled workplace investigator and trainer who can take the stress out of conducting workplace investigations into bullying, harassment, sexual harassment, discrimination and other forms of misconduct.
You can contact me on 02 9674 4279 or phil@awpti.com.au
This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from suitability qualified and experienced workplace investigators.
AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations
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Location: Sydney NSW, Australia

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