Flawed Workplace Investigations vs Serious Misconduct
We have previously written about the importance of workplace investigations being conducted in accordance with the principles of natural justice and procedural fairness. A flawed workplace investigation that leads to termination of employment can give rise to successful unfair dismissal claim. There are many cases which have held that, despite there being a valid reason for the termination, the dismissal was harsh, unjust and unreasonable on account of procedural flaws in the workplace investigation.
However, a recent decision of the Fair Work Commission demonstrates that procedural irregularities and/or procedural unfairness can be outweighed and cured by the seriousness of the misconduct which gave rise to the investigation and termination.
Simon Parris v Trustees of Edmund Rice Education Australia T/A St Kevin’s College  FWC 2341 (28 April 2021)
A teacher’s employment was terminated after he was accused of inappropriate contact with a student and inappropriate online conduct. The teacher initially received a warning from the employer and the matter was closed. However, following further concerns raised by the student’s parents, an external investigation was undertaken at a later point. At that time, the teacher was given a letter outlining two allegations, requested to attend a meeting the following day and then terminated the day after.
The teacher sued the school for unfair dismissal alleging, amongst other things, that he was not afforded natural justice through the disciplinary process. The teacher argued that there were procedural flaws in the school’s investigation and dismissal process and his termination was, therefore, unfair. The procedural irregularities included him not being provided with adequate notice of all the reasons for his dismissal, not being given a proper opportunity to respond, not being given adequate notice of his formal interview and not having access to a support person at his formal interview.
During the unfair dismissal proceedings, the school also alleged that further grounds for dismissal came to its attention following the teacher’s termination. These included the teacher sending emails to students that breached professional boundaries and using a school computer to access and store inappropriate material.
The Fair Work Commission found that the teacher’s conduct was serious misconduct and constituted a valid reason for his dismissal. Whilst acknowledging that the school had failed to provide procedural fairness by affording the teacher no opportunity to respond to those allegations revealed after his termination, the Fair Work Commission held that the teacher’s dismissal was not unfair having regard to the seriousness and gravity of the misconduct and the harm it caused to the student concerned.
Importance of Maintaining Appropriate Boundaries
This case also serves as a timely reminder of the importance of maintaining appropriate boundaries with students. Clearly, a Principal cannot commit physical or sexual offences against a student. However, Principals should also be mindful of all physical contact with students and ensure that it is limited or avoided wherever possible. Seemingly innocuous conduct may still lead to allegations of misconduct if it can be considered to be overly personal or intimate. When such conduct occurs, you will be subjected to a workplace investigation and the stringencies of the Reportable Conduct Scheme. There may also be a police investigation into any alleged criminal conduct. These processes cause a lot of stress and angst for those subjected to them.
How can Brennan Law Partners assist?
It is imperative that you follow correct procedures when investigating and/or dismissing an employee. Failure to do so can impugn the validity of the action and whilst possible, you do not want to rely upon the seriousness of the employee’s misconduct to outweigh any procedural deficiencies during the dismissal process.
Brennan Law Partners can assist you with planning and managing a workplace investigation or to ensure your policies and procedures are up to date and effective in managing the issue. Contact us to review your policies and procedures to ensure they are effective and up to date and let us know immediately if you are hesitant about appropriate steps to take in a given situation.
If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.