Mohammed Ayub made an application for an unfair dismissal remedy (in the case of  Ayub v NSW Trains [2017] FWC 1106 ) in respect of the termination of his employment by NSW Trains. Mr Ayub was employed as a Customer Service Team Leader from May 1982 until his dismissal in January 2016. Mr Ayub’s employment history was quite colourful – he had received a number of sanctions for breaches of the NSW Trains Code of Conduct including fines, suspensions and final warnings. Between December 2014 and May 2015, Mr Ayub was involved in two incidents. The first incident occurred in December 2014 when Mr Ayub elected to absent himself from work without approval or authorization. Following this incident, Mr Ayub was issued with a final warning. The second incident occurred in 19 May 2015, when Mr Ayub allegedly abused Mr Singh, a Platform Manager, over the phone. It is alleged that Mr Ayub made a number of comments to the Platform Manager including “you should cut your hair and throw your tu...

The presence of bias be it actual or perceived during an investigation can derail the investigation and undermine any findings and recommendations. Complaint of bias are often raised relating to two areas, the investigation process itself or the investigation interviews. This article will examine the process, part two will examine bias during interviews. Workplace investigations are defined as  "an unbiased gathering of evidence"  and to ensure that that a complaint of bias is not raised or substantiated it is important to follow these rules; Approach the investigation with an open mind. Do no make any judgements on the parties Do not make any judgements on the truthfulness of any of the parties versions of events until all the evidence has been gathered. Gather all the evidence, not just the evidence that supports the complaint Do not form a theory and then seek evidence to support your theory only Do not make early determinations If you feel that you ...

It is important to understand that a workplace investigation may be scrutinised by a court in the case of a complainant suing in negligence for a breach of a duty of care in a bullying or sexual harassment matter for example the case of  Mathews v Winslow Constructors   where an award of 1.3 million dollars was ordered or by the Fair Work Tribunal in the case of an unfair dismissal application is made by a terminated employee. A crucial part of any investigation are the workplace investigation documents including; Letters to the complainant and witnesses Letters of allegation to respondents Risk assessments Witness statement Interim reports Final reports It is essential that firstly these documents actually exist and secondly that they are compliant. In the case of  Michael Fitzpatrick v Bunnings Group Ltd The commissioner found (at 85) In addition to  not  providing Mr Fitzpatrick with the basis of the allegation,...

Workplace Investigation Allegations and Procedural Fairness- The importance of ensuring correct procedure when it comes to advising a person subject of a complaint what the actual allegations against them are. During the course of an investigation there comes a point where you must ensure that the person subject of a complaint is afforded procedural fairness. Failure to afford an employee Procedural Fairness can result in; Successful unfair dismissal action by terminated employees at the Fair Work Commission Orders for compensation against the employer Orders for reinstatement of the terminated employee Negative publicity and damage to brand image Negative impact on the business in general General rules of Procedural Fairness – the rights of the employee     The right to know the nature of the allegation/complaint against them in cases of behaviour issues The right to know is referenced in the Fair Work Act 2009 – s387 – Criteria for considering harshness...

Subtle, negative types of behaviour that threaten staff engagement and cause absenteeism are slipping under the radar and deserve more attention from HR, research shows. Researchers studied 500 Australian employees over a 12-month period, and their  report  identifies 22 distinct experiences or acts of bullying in the workplace: Withholding information; Humiliation/ridicule; Allocating work below the person's level of competence; Removing responsibility; Gossip/rumours; Ignoring/exclusion; Personal insults; Shouting; Intimidating behaviour; Hints/signals to quit the job; Reminders of errors/mistakes; Ignoring/hostile reactions; Persistent criticism; Opinions ignored; Practical jokes; Unreasonable deadlines; Making allegations; Excessive monitoring of work; Pressure to not claim entitlements; Excessive teasing; Unreasonable workloads; and Threats of violence/abuse and actual abuse. They found these negative acts appeared across five distinct subtype...

While email is a vital communication tool for businesses, an organisation is vulnerable to employees who misuse it. Employer monitoring of email may be necessary to identify misconduct or to prevent harm to the employer’s business.   In a digital age where the line between personal and public is becoming increasingly blurred, the question often arises as to the rights of an employer to monitor employee email. Australia is split on this issue. Australian private sector employers in states and territories other than NSW and the ACT can check employee’s emails without prior notice, agreement or policy. There are also special rules for public sector employers. Both NSW and the ACT have introduced legislation regulating private sector workplace computer surveillance.   In NSW and the ACT, unless a covert surveillance authority is obtained from a magistrate, complying with the legislative requirements for overt surveillance will mean an employer can lawfully check emails when needed...

In situations where a public holiday such as Australia or ANZAC day falls on either a Tuesday or Thursday, businesses typically report high levels of personal leave on the adjacent Monday or Friday.  Many workers, who would otherwise normally use personal leave honestly, find the lure of a four-day weekend irresistible, and put their normal ethical standards regarding personal leave to one side. Chamber of Commerce and Industry chief James Pearson announced that in 2017, businesses were expecting 200,000 employees to call in sick on the Friday after Australia Day, and that the impromptu four-day holiday could cost the Australian economy more than $54 million. In businesses that offer essential services, or customer service, this cost is a directly economic one from disruption to productivity, delivery, and customer service. For others, the costs are more subtle, effecting workplace relationships between employees, and eroding trust between employers and their team. Whe...

Whilst technology and social media have unquestionably provided many benefits to the modern workplace and opportunities for businesses to reach a wider audience, they have also presented dilemmas for HR managers and business owners when dealing with interactions between employees.  With the increased use of the internet and social media, and the fact that almost everyone in the workplace now owns a smart phone and can access Facebook, Instagram and similar social media platforms 24/7, problems that used to be left at work when the day ended and everyone went home now follow people home after work hours, which can present huge challenges for employees and managers alike. With 66% of the Australian population now on Facebook, 20% on Instagram and 17% on Snapchat i , social media has become a huge part of many people's lives. The impact that social media bullying has on children and teenagers has been well publicised, with many schools now introducing programs to educate stud...

Domestic and overseas travel has become highly accessible and affordable which has presented many opportunities for national and multinational businesses as employees can travel relatively easily and cheaply between offices, sites and clients. In fact, the prevalence of business travel is quite significant and in 2016, the Australian Bureau of Statistics reported 9% of overseas trips taken by Australian residents were related to business.  This is quite a substantial figure and although long distance travel clearly offers many benefits for employers, it also raises questions as to their legal obligations and how to best manage employees who are away from the office and required to travel for work. Businesses must consider three issues to ensure that their travelling employees are behaving and performing appropriately whilst also ensuring protection of the business's commercial interests and adherence to legal obligations. Manage employee behaviour and performance ...