By Brad Petley
Acumen Lawyers Workplace relations and safety law specialists
The background
At the time of her dismissal, the employee (Ms Ward) had worked as an Advertising Sales Coordinator in her employer’s Agency Division. Each sales coordinator had a client list to sell advertising to and service.
The employer had an account management system on its computer network which provided a complete billing history of the advertising relationship with clients. Sales coordinators entered ‘notes’ about client-related matters into the account management system.
The employer decided to restructure. Clients previously serviced by the agency sales team (including by the employee) were internally allocated to other teams.
The employee didn’t take kindly to the restructure. ‘In a fit of pique’ she deleted notes that she had made about clients on the account management system to make it difficult for anyone who took over the employee’s client accounts.
Whilst voicing her unhappiness about the reallocation decision with her manager, the employee informed him of the deletion of her client notes from the account management system.
The investigation
The employer initiated a workplace investigation following the employee’s disclosure. An examination of the employer’s computer system confirmed that notes had been deleted by the employee.
Some three days after the employee’s disclosure, an 8 am meeting was held by management. The employer’s Sales Director, who had initiated the investigation, directed a human resources officer to arrange a meeting with the employee. At the time, the matter was considered ‘serious’ and the Sales Director was considering the employee’s dismissal.
Within two hours, the employee was summoned to a meeting with the human resources officer and management representatives.
Following the misconduct meeting, the employer decided to summarily dismiss the employee with four weeks pay in lieu of notice (due to her near 20 years of service) the next day.
The employee subsequently filed an unfair dismissal claim Sandra Ward v West Australian Newspaper Limited [2010] FWA 1785 (8 March 2010).
Unfair dismissal hearing – the important points
Fair Work Australia was critical of the employer’s workplace investigation.
FWA rejected the employer’s attempted characterisation of what was in reality a serious meeting about alleged misconduct as a merely a ‘conversation’ or ‘discussion’.
FWA observed that:
- the employee’s ongoing employment was in jeopardy prior to her attending the meeting;
- the employee was called to the meeting without any notice or knowledge of its purpose;
- the employee had no idea of the meeting’s seriousness;
- the meeting, whether deliberate or not, was set in the employer’s boardroom, which one of the manager’s present described as making him uncomfortable;
- Ms Ward was interviewed by two senior members of management and the HR Officer;
- the interview was not conducted with clarity, mainly due to the HR Officer leading the interview with less than 48 hours knowledge of the account management system; and
- this lack of clarity and lack of notice led to the employee being confused, hesitant in her answers and the employer (incorrectly) forming the view that the employee lacked openness and she was untruthful.
FWA held that:
- the employee was not treated fairly nor was there was a valid reason for her dismissal;
- at the misconduct meeting, the particulars of the allegations and surrounding circumstances were not put to the employee in a fair and straightforward way enabling her to respond appropriately;
- the meeting was arranged in such a way – in terms of location, timing and lack of knowledge of its purpose – that the employee could not access a support person;
- the employee was not untruthful in her answers; and
- the dismissal was unfair.
FWA overturned the dismissal and reinstated the employee to her original position.
Lessons for employers
When conducting a workplace investigation into workplace misconduct, employers need to be able to demonstrate a fair procedure was adopted. In particular:
- avoid any actions which could be perceived as trickery;
- be clear with an alleged wrongdoer about the purpose of a meeting – including the nature and seriousness of the allegations being investigated.
- avoid using vague statements or descriptions which play down the seriousness of the meeting (e.g. ‘having a chat about something’);
- provide sufficient notice of the meeting to enable the alleged wrongdoer to seek advice and/or arrange a support person; and
- not have made any predetermination about the outcome of the investigation.