Workplace investigations and the disciplinary process

“NSW Workers Compensation Commission finds employer’s investigation and disciplinary process unreasonable”

Dixon v Cowra Shire Council [2019] NSWCC 223

Executive summary

An employer is liable for a worker’s psychological injury after the NSW Workers Compensation Commission (WCC) found that the disciplinary process undertaken was not reasonable and flawed.

Background

Mr Dixon (the Worker) was employed by Cowra Shire Council (Council) as a part-time public relations officer.

In May 2018, a female colleague (the complainant) lodged a complaint alleging that the Worker had engaged in unacceptable conduct, including that he rubbed her bottom during a hug between the two.

Council commenced an investigation into the complainant’s allegation. Council’s investigation found the Worker to have engaged in unacceptable conduct and breached Council’s policies. The Worker was then invited to show cause as to why disciplinary action should not be taken. The Worker claimed that the matter had been prejudged.

The Worker did not attend a meeting as he was on sick leave and did not provide written responses to the disciplinary letter. The Worker was later advised that Council had determined to terminate his employment.

The Worker subsequently lodged a workers’ compensation claim alleging that he suffered psychological injury as a result of an unfair disciplinary process.

Liability for the injury was declined by the insurer, relying on section 11A of the Workers Compensation Act 1987 (NSW) (WC Act). The insurer disputed that compensation was payable on the basis that the Worker’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Council with respect to discipline. Liability for weekly compensation and medical expenses were also denied.

In the proceedings before the WCC, the issue in dispute was whether the Worker’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by Council with respect to discipline and, if not, the extent of the Worker’s incapacity.

The Worker argued that Council’s disciplinary process was unreasonable, submitting that Council took disciplinary action against him on the basis that it accepted the complainant’s version of events and provided no evidence of its review of the evidence. In this regard, the Worker referred to the NSW Local Government Industry Guidelines on Workplace Investigations (the Guidelines) which specified that investigators are to consider the evidence and make findings on the “balance of probabilities”. He submitted that Council provided no reasons why the complainant’s version was preferred and that in circumstances of conflicting evidence, it was not possible to make a finding substantiating the allegation.

The Worker also submitted that he wasn’t provided with copies of the complainant’s initial complaint or statements for him to provide his responses.

Accordingly, the Worker submitted that Council’s conclusion and finding of misconduct was based on an unreasonable and deficient procedure.

Council argued that the steps taken in the investigation process were reasonable. It was submitted that given the differing version of events, Council had to determine which version was more plausible and the version to accept. In this regard, Council argued that the Worker’s responses to the investigation blamed the complainant in order to deflect attention from his conduct.

In relation to the disciplinary process, Council submitted that it took reasonable action as the Worker was presented with the findings and given the opportunity to show cause in relation to the disciplinary penalty to be imposed.

Council claimed that the evidence showed that its actions in the investigation and disciplinary process were reasonable as it undertook an investigation, obtained evidence and provided the Worker with an opportunity to respond.

Decision

Senior Arbitrator Capel noted that the issue for determination was whether Council’s disciplinary action was reasonable. While noting that Council’s actions “overall” complied with the obligations under the Guidelines and policies, SA Capel found that there were “many flaws in the process”.

Specifically, SA Capel considered that:

  • There was no evidence that other options for resolving the issue provided by the Guidelines were considered.

  • The interviews and meetings were recorded in the form of minutes, in the third person and not in direct speech and were based on handwritten notes that were not, but should have been, in evidence in the investigation;

  • The documents were only signed by the HR Manager and General Manager and were not verified by the other interview participants. For SA Capel, this process was flawed and raised issues about the weight to be given to the content of the documents and their accuracy.

  • There was no signed statement from the complainant and no explanation given as to why a signed statement was not provided.

  • There were a number of issues not explored by the investigation. For example, important facts in the complainant’s email complaint were not clarified with the complainant.

  • The Worker was not provided with sufficient detail or particulars about the allegation.

  • The Worker was also not provided with copies of the email complaint, handwritten notes or verified interview transcripts. SA Capel was of the view that the failure to do so was contrary to the Guidelines.

  • The Worker should have been provided with an opportunity to address the complainant’s specific allegations arising from her email complaint.

  • The outcome letter was “inadequate” as it did not give sufficient detail or reasons why the outcome was reached and why the Worker’s explanation of events was rejected and the complainant’s version was preferred. Accordingly, Council’s actions failed to provide the Worker with procedural fairness and were not reasonable.

  • It was unreasonable for Council not to refer the investigation to an external investigator in response to the Worker’s allegations of bias and conflict of interest.

  • In breach of the Guidelines, an investigation report was not prepared and evidence was not provided to the Worker.

Having regard to the above, SA Capel was not satisfied that the disciplinary process undertaken by Council was reasonable. He found that Council had not made out the section 11A defence that the psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken with respect to discipline.

SA Capel made Orders in favour of the Applicant in relation to injury and for the payment of weekly benefits.

What can your business learn from this decision?

The case also highlights for employers the need to ensure that steps taken in the investigation process are reasonable, as flaws in the process will raise questions of procedural fairness and could also have an impact on any consequential disciplinary action. Where appropriate, employers should engage external investigators who have experience and expertise in conducting investigations.

 

Labour hire company convicted

“NEWS ALERT: First conviction under labour hire licencing laws”

A labour hire company in Queensland has been the first business in Australia to be charged and convicted of breaching labour hire licensing laws.

Under the Labour Hire Licencing Act 2017 (Qld), labour hire providers in Queensland must be licenced and businesses must not use labour hire businesses that are unlicensed.

The business convicted supplied workers to a strawberry farm in southern Queensland after its application for a labour hire licence was withdrawn. It had been warned by the Labour Hire Licencing Compliance Unit that it was no longer permitted to provide labour hire services in Queensland, but continued to do so.

The business was fined $60,000 for the offence.

 

Review of Miscellaneous Award 2010

“Full Bench of FWC to review the coverage of the Miscellaneous Award 2010”

4 Yearly Review of Modern Awards – Miscellaneous Award 2010 [2019] FWC 3934

The President of the Fair Work Commission (FWC), Justice Ross, has announced that the Full Bench of the FWC will conduct a review of the coverage provisions of the Miscellaneous Award 2010 (Miscellaneous Award).

The announcement follows a recent decision where an employer in the pet grooming and boarding industry applied to the FWC for approval of an enterprise agreement. In the first instance, the FWC held that employer was not covered by an award and it approved the enterprise agreement.

United Voice successfully appealed and the Full Bench of the FWC found that the employer was covered by the Miscellaneous Award. In the course of the proceedings, questions arose about the clarity of the coverage provisions of the Miscellaneous Award and about advice given to the employer concerning its coverage.

As a result of this uncertainty, the Full Bench has been tasked with reviewing the coverage provisions of the Miscellaneous Award.

We will keep you updated with the outcome of this review.

 

Recruitment, criminal records and discrimination

“Employer’s decision not to formalise employment offer due to criminal record was discrimination”

Smith v Redflex Traffic Systems Pty Ltd [2018] AusHRC 125

Executive summary

The Australian Human Rights Commission (AHRC) has found that an employer discriminated against a job applicant on the basis of her criminal record when they refused to formalise an offer of employment.

Background

The complainant applied for the role of Mobile Speed Camera Operator (Operator) with Redflex Traffic Systems Pty Ltd (Redflex). The complainant attended an interview and was later offered the Operator role, but was also advised that she would be required to complete a criminal history check and a medical assessment. The complainant notified Redflex that the police check would reveal that she had a record of disclosable offences. The complainant had been convicted of two offences – one which included an offence of violence when she was a teenager and another for drug possession.

The complainant made enquiries with Redflex after she did not hear back in relation to her application. Redflex subsequently advised her that her application would not be progressed due to her criminal record history and that the employment offer was withdrawn. The complainant also requested further information regarding the police check and the rescission of the employment offer, including an opportunity to explain her offences, however Redflex did not provide any response.

The complainant lodged a complaint with the AHRC claiming that Redflex discriminated against her in employment on the basis of her criminal record.

Redflex claimed that it made an informal offer of employment to the complainant, and that the offer was not formalised due to the unsatisfactory police check. Redflex submitted that it did not unlawfully discriminate against the employee because the complainant was not able to perform the inherent requirements of the role of Operator.

Redflex claimed that:

(a) It was obliged under its contract with the Roads and Maritime Services of NSW (RMS), to ensure that employees engaged are subject to probity checks and as such a satisfactory outcome of the probity check was an inherent requirement of the role.

(b) The RMS required persons to be a “fit and proper person” and it made a judgment that the RMS would not consider the complainant a “fit and proper person” due to her criminal record.

(c) The Operator role would be exposed to volatile situations with members of the public and as such it was an inherent requirement that persons are able to respond calmly and professionally in a hostile or potentially volatile situation.

Decision

The AHRC identified that the inherent requirements of the Operator role required that the person:

  • Be trustworthy and of good character;

  • Be able to behave calmly and professionally in hostile and potentially volatile situations;

  • Be able to properly handle proprietary information; and

  • Have a driving record demonstrating a commitment to road safety.

The AHRC was not satisfied that the complainant’s criminal record meant that she could not perform any of these inherent requirements of the role.

In relation the complainant’s character, the AHRC was of the view that given the period of time which had passed since the complainant’s convictions, it did not mean that the complainant was untrustworthy or of bad character now. The AHRC was also not satisfied that the complainant could not now meet the high standards of character or trustworthiness because of the prior convictions.

Similarly, the AHRC was of view that there was not a sufficient connection between the requirement for an Operator to behave calmly and professionally in hostile or volatile situations and the complainant’s conviction. According to the AHRC, it did not follow that because the employee had an assault conviction as a teenager, that she could not behave professionally and calmly in a hostile work environment now.

The AHRC also found that there was no connection between the complainant’s offences and her ability to handle proprietary information given the nature of the convictions. The AHRC also considered that the given the period of time and the complainant’s rehabilitation, it did not mean that she was not able to handle proprietary information.

Finally, the AHRC was also not satisfied that there was sufficient connection between the complainant’s conviction and the inherent requirement that she have a driving record demonstrating commitment to road safety.

The AHRC was critical of Redflex’s failure to provide the complainant an opportunity to explain her criminal history and provide information in relation to her current circumstances and achievements. It found that because of the lack of information, Redflex did not have the information to properly assess the complainant’s circumstances which is a necessary step in determining whether she could perform the inherent requirements of the role.

The AHRC found that Redflex’s discrimination of the complainant on the basis of her criminal conviction was not based on the inherent requirements of the role. Accordingly, Redflex discriminated against the complainant when it did not formalise the offer of employment for the Operator role.

The AHRC made recommendations that Redflex:

  • pay compensation to the complainant for hurt, humiliation and distress;

  • revise its recruitment policies; and

  • conduct training for its recruitment, human resources and management staff involved in employment decisions and the assessment of criminal records against inherent requirements.

In its report to the Attorney General, the AHRC noted that Redflex had adopted its recommendations, including paying the complainant compensation in the amount of $2,500.

What can your business learn?

This decision is a reminder to employers regarding the assessment of criminal convictions against the inherent requirements of a position – that is, it will constitute discrimination if there is a refusal to employ a person due to their criminal record unless there is a sufficient connection to the inherent requirements of the role. As this decision demonstrates, employers will be required to carefully consider the individual circumstances against the inherent requirements of a role.
The decision also serves as a reminder to employers to ensure that care is taken in the recruitment process, in particular that employment offers (even informal offers) should only be made after pre-employment checks are conducted.

 

Sports Law – player suspensions and stand downs

“Federal Court rules on NRL’s no-fault stand down policy”

De Belin v Australian Rugby League Commission Limited [2019] FCA 688

Executive summary

The Federal Court of Australia (the Court) has confirmed that a no-fault stand down policy recently implemented by the Australian Rugby League Commission (ARLC) is not an unlawful restraint of trade.
The policy states that a player who is charged with a “serious criminal offence” is automatically stood down from playing in the NRL or other related competitions, on full pay, pending determination of the charge.

Background

De Belin is a professional rugby league player currently employed by St George Illawarra Rugby League Football Club to play rugby league in the NRL competition. On 13 December 2018, de Belin was charged with one count of aggravated sexual assault. He has pleaded not guilty and the matter is yet to be determined by the courts.

In February 2019, the ARLC, as the governing body of the NRL, resolved to adopt a new policy that players facing ‘serious criminal charges’ were not permitted to participate in the NRL (and any related competitions such as representative matches) pending determination of the charge (the Policy). Such players are still, however, permitted to train with their employing club and remain on full pay.

According to the Policy, a ‘serious criminal charge’ is one which attracts a maximum penalty of at least 11 years’ imprisonment. Any players charged with a criminal offence carrying a lesser maximum penalty may be subject to the no-fault stand down at the discretion of the NRL’s Chief Executive Officer or Chief Operating Officer.

De Belin commenced proceedings against the ARLC and the NRL in the Court alleging, amongst other things, that the Policy was an unlawful restraint of trade. On this basis, he sought an injunction preventing the ARLC and the NRL from relying on the Policy, as well as damages.

The ARLC and the NRL contended that the Policy was reasonably necessary to protect their legitimate business interests.

The ARLC argued that its objectives are to develop and grow the game of rugby league at all levels and to promote and encourage the welfare and engagement of young people in the community. It argued that, in order to do this, it was largely dependent on the financial success of the NRL, which is derived from broadcast and commercial revenue, including sponsorship, digital and major event revenue.

It was argued that sponsors were looking for any association with the NRL to reflect positively on their brand, and that the reputation of NRL clubs and players strongly influenced that perception.

According to the ARLC and the NRL, the criminal charges faced by de Belin which received extensive media coverage including details of the specific allegations made against him, had caused serious damage to his reputation.

Whilst it accepted that de Belin is entitled to the presumption of innocence, the extent of the coverage of the charges faced by de Belin meant that members of the public were likely to conclude that de Belin had been charged with cause and that the police reasonably believed that he had engaged in conduct that warranted that charge.

This, amidst numerous scandals going back to 2015 involving allegations of disrespectful behaviour by NRL players towards, and violence against, women, was causing and/or had the risk of causing serious damage to the reputation of clubs and the NRL by association.

The ARLC and NRL relied on evidence that, in January/February 2019, clubs were having difficulty securing sponsors as a result of the risk of association, and that sponsors were suggesting that the NRL take more action to protect the reputation of the NRL and its partners.

Decision

The Court was satisfied that the ARLC and the NRL had legitimate business interests that they were trying to protect, and that the number of criminal charges against NRL players was a matter of serious concern in the following context:

  • the NRL had a responsibility to protect its integrity and reputation, and the game of rugby league generally;

  • a significant aspect of the NRL’s strategic plan is to increase female participation in the game; and

  • sales had been affected by the negative media coverage, and there were legitimate concerns raised by existing and potential sponsors about player behaviour and what the NRL had proposed to protect its reputation, as well as that of its partners.

The Court acknowledged that the restraint was particularly serious in that it deprives de Belin from being able to play and compete in the national elite level of rugby league. This was particularly emphasised given the limited amount of time a player can play professionally at this level, and that rugby league players need to play in order to maintain their skills, profile, reputation and career trajectory. The Court did however note that this was ameliorated to some extent by the fact that de Belin could still train and has access to welfare and education support, and it was therefore not satisfied that the Policy substantially impaired his career and his ability to earn money in the future.

The Court was also satisfied that the ARLC and NRL had discharged its onus of establishing a clear and present danger to their legitimate interests, accepting that, whilst presumed innocent, de Belin is nonetheless clearly associated with an act of serious sexual violence against a woman as a result of the charge, and that a reasonable person may think there is a reasonable and probable basis for the charge, and therefore a risk that he is guilty.

Whilst de Belin argued that the Policy was unreasonable noting its automatic and retrospective application for an indefinite period and without a right to hearing or review, the Court disagreed and found that the Policy was reasonable.

It found that no measure short of a rule precluding de Belin, and others charged in the future with offences of a similar nature and seriousness, from taking the field was likely to address the legitimate interest of the ARLC and the NRL. This was particularly so following the dissemination of the allegations against de Belin and in the context of the most recent off-season – the NRL needed to take steps, and to be seen to take steps, urgently and before the commencement of the 2019 NRL season in order to repair and prevent further damage to the image and reputation of the NRL and to the public confidence. It was satisfied that the previous policy (allowing players facing such charges to continue playing) had failed to do this.

According to the Court, the fact that charges had been laid carried “the irresistible inference that the prosecution believes that the case is one founded upon evidence reasonably considered to be reliable and admissible”, which is a rational and reasonable basis for the Policy.

It also found that the absence of a right for hearing or review against the automatic stand down was reasonable in circumstances where an investigation by the NRL or ARLC that made any finding as to whether or not de Belin had engaged in the conduct, could result in them being found in contempt of court given the ongoing criminal proceedings.

The Court noted that the NBA and the NFL in the USA have similar policies that allow for players to be stood down. In this regard, it acknowledged that in such circumstances, where such policies are implemented by the governing entity even though they are not the direct employer, it is recognised that permitting a player to play would have an impact on the interests of the competition and the sport – not just the employer. The Court likened it to the right of an employer at common law to stand down an employee pending investigations into allegations of misconduct.

Based on the above, the Court dismissed de Belin’s claims and upheld the validity of the Policy.

What can your business learn from this decision?

As discussed by the Court, employers may have a right at common law to suspend or stand down an employee for a limited period pending investigations or disciplinary outcomes. However, the ability to lawfully do so becomes more complicated when employees are required to work in order to maintain their skills, profile and career development – such as professional athletes.

This decision has shown that where there is a real risk to an employer’s (including sporting clubs and/or their governing entities) reputation, then a decision to suspend or stand down an employee may be a lawful and reasonable one.

We note de Belin is appealing this decision and the appeal is listed for hearing in August 2019.

Regardless of the outcome, employers should review and ensure that their employment contracts contain specific provisions relating to employee suspension / stand down, and what will happen if an employee is charged with a criminal offence that is relevant to their job.

Coming Up

 

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Need a laugh…

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A: A hush puppy.

Q: What kind of dog cries the most? 
A: A Chi-wah-wah.

Should you require any further information or assistance, please contact our Director Shane Koelmeyer on (02) 9256 7500 or via email on sydney@workplacelaw.com.au.

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