Tips for dealing with disciplinary matters in an impartial and procedural fair way.
The customer centric focus of the retail industry means the sector is faced with a number of different stressors which can affect people in different ways. In some circumstances, this can result in challenging situations where employees engage in conduct that is inconsistent with company policies.
When a team member is not performing to the level required, or engages in conduct that may potentially damage the reputation or profitability of the business, it can be tempting to respond with a knee-jerk reaction such as a formal warning or on-the-spot dismissal.
However, this response can put you and your business in a dangerous position and if the employee can show that the action taken against them was unreasonable, then you may find yourself having an unpleasant conversation with the Fair Work Commission (FWC).
The importance of a fair process is evident with an increasing number of FWC decisions where employees have been reinstated or received significant compensation because the employer did not go through a fair investigation. This has happened even in cases where the Commission found that there was a valid reason for dismissal!
So what is procedural fairness?
An employee will be eligible to make an unfair dismissal claim when they have served the minimum employment period of 6 months (or 12 months for a business with less than 15 employees). A termination will expose a business to an unfair dismissal where it is harsh, unjust or unreasonable in all the circumstances.
Each of these three reasons require different considerations to be applied to the circumstances. A decision will be considered harsh where the consequences to the individual’s personal situation would be substantial when compared to the severity of the conduct. Whereas a decision will be unjust if the employee has not engaged in the inappropriate conduct or unreasonable where the decision was not based on the evidence before the employer.
Importantly, a dismissal only needs to be harsh or unjust or unreasonable for it to be considered unlawful. Fortunately, the Fair Work Act 2009 outlines specific procedural guidelines a business needs to follow where they decide to dismiss an employee. These considerations include:
- The reason for the dismissal;
- Whether the person was notified of this reason;
- Whether the person was given an opportunity to respond to the reason;
- Whether the person was unreasonably refused a support person;
- Whether person was given notification of unsatisfactory performance;
- The size of the business;
- Whether there is a dedicated HR manager; and
- Any other maters the Commission considers relevant.
This list outlines the significance of the investigation process when considering the dismissal of an employee.
Disciplinary responses can range from a verbal warning, to immediate termination, or no action at all if the conduct is not substantiated. This is why following the correct procedure is so important when looking at disciplining an employee. In some situations, the first impulse may be to terminate an employee. However, once you go through the correct process, you may find that you arrive at a completely different outcome.
Tips for conducting a correct workplace investigation.
Below are some quick tips that will help you ensure you are conducting a fair and impartial investigation:
1: Be thorough
This is perhaps the golden rule when conducting an investigation. If you have received complaints about the conduct of one of your employees, it is important that you get all sides of the story. This goes to the very heart of ensuring the investigation is fair and significantly reduces the risk that you make a decision based on incorrect or missing information. Ensure you record all communications and document all the steps you take to complete the investigation.
2: Be impartial
It is important to remove from the investigation any perception of bias. This means you need to identify any staff members, management, HR personnel or customers involved in the complaint and remove them from the investigation process. Where there is only a small team it may be appropriate to consult a specialty HR consultancy firm to perform the investigation on your behalf.
3: Maintain confidentiality
When going through a workplace investigation you will often come across confidential and sensitive material. Be sure that you handle this information carefully and avoid sharing it with anyone unless it is absolutely necessary. This can have a potentially devastating impact to other people in your workplace and is something you surely want to avoid. This can be especially true when you ultimately find the allegations are not substantiated and the information leaked has already lead to damage to the business.
Ultimately an unfair investigation can very well lead to an unfair dismissal which in turn can to quite costly consequences both financially and to the reputation of the business. Early 2018 has seen the Commission placing more and more responsibility on employers to ensure they provide all individuals with a procedurally fair investigation, particularly where this investigation leads to a termination.
We expect to see this trend continuing through the year and therefore it is incumbent on retailers to ensure they have the appropriate measure in place to adequately deal with disciplinary issues as they arise in an impartial and procedurally fair way.
For more information regarding unfair dismissals please contact the ARA Employment Relations Team on 1300 368 041