Appropriate workplace behavior … don’t be too quick to dismiss

The Christmas/New Year period provides employees with an opportunity to celebrate the festive season and the year that has passed. Employees can ‘forget’ the appropriate conduct required of them, particularly when alcohol is involved and when functions are held offsite and outside normal working hours.

Incidents seemingly increase during this period and can often result in serious complaints and breaches of the employer’s code of conduct. Inevitably such complaints can result in exposure to increased liability for employers. If an incident does occur, you should not be too quick to dismiss an employee. You should investigate any incident and ensure the employee is afforded procedural fairness.

From the courts

In a recent decision Dewson v Boom Logistics Ltd [2012] FWA 9027, the employer dismissed an employee for serious misconduct, which involved physical assault (head-butting another employee) at a Christmas function.

An investigation into the incident was not finalised until April in the following year, but by this time another allegation of assault had been made against the same employee.

In response to the second incident, the employer concluded that the second alleged assault (which was denied by the employee), together with the head-butting incident at the previous Christmas party, established a pattern of unacceptable misconduct which warranted his summary termination.

When considering the employee’s subsequent unfair dismissal claim, Fair Work Australia found that:

  1. no proper investigation had been undertaken
  2. the relevant manager displayed manifest bias
  3. the manager had pre-determine his views before hearing from the employee, and
  4. the manager ambushed the employee with the allegations and he unreasonably refused to allow the employee to have a support person of his choice attend the investigative interview.

All of these actions resulted in the employer failing to provide procedural fairness to the employee. Fair Work Australia (FWA) also considered that the employer should have taken action against the employee after the head-butting incident, but did not take appropriate steps at the time. Because of this, and due to lack of proper analysis of the second alleged assault, FWA held there was no substantive reason for the employee’s dismissal. His termination was found to be unfair and compensation was awarded.

Proper investigation is the key

Employers should be aware that if any of your employees do behave inappropriately at work, or at work-associated functions such as Christmas parties, and even if the behavior could amount to serious misconduct, you must not be too quick to dismiss. Rather, to minimize the effect of any claims for unfair dismissal, you should take steps to properly investigate and provide procedural fairness to employees.

How can Fresh HR Insights assist?

Fresh HR Insights can assist with the following documents:

  • Appropriate Workplace Behavior Policy
  • Christmas Party Letter to Employees
  • Code of Conduct
  • Performance and Misconduct Policy
  • Workplace Drug and Alcohol Policy

Information Sourced from HR Advance (10 Dec 2012)

Base Employee Handbook – You really do need one. 

Having an Employee Handbook can potentially limit or totally avoid many of these issues when it comes to behavior in and outside of the workplace. We have developed a Base employee handbook – cost effective yet covers off the main areas in the workplace that you will need to worry about. Plain English, simple to understand and easy to implement. With this Handbook when something does come up (and it will), you’ll be prepared to handle it confidently and consistently. Grab it by clicking on the link below. 

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