HR Investigations need to be sound

The following summary of a recent case outlines how important it is for employers to have sound HR processes in place.

The applicant lodged an unfair dismissal application with the Fair Work Commission after being terminated from her employment.

The applicant had been employed for almost 15 years. The applicant was employed on a full-time basis and she worked as a mushroom picker/harvester.

The applicant worked up until February 2020 without any record of an issue regarding her performance or conduct as an employee.

In February 2020, the applicant received a verbal warning for not following workplace policies, rules or procedures.

On 9 May 2020, the applicant received an employee counselling/warning form for allegedly not putting mushrooms in the pre-pack but instead into the boxes.

On 29 May 2020, the applicant received another employee counselling/warning form for allegedly arguing with her supervisor.

On 19 June 2020, the applicant received another employee counselling/warning form because she had sent advice of her absence from work at 7:03 am instead of 6:30 am. The applicant’s ordinary working hours were from 7:30 am to 6:30 pm.

The work that the applicant performed as a mushroom picker involved the use of three hand tools namely, a harvesting knife, a blade, and a ring. All mushroom pickers are allocated a numbered knife and blade for the duration of their employment. The applicant was allocated knife number 4. At the completion of each shift, the hand tools that were used by the mushroom pickers had to be washed and returned to wall hangers that have numbered hooks for the respective numbered knife or blade. There are separate wall hangers for the knives and the blades. The wall hanger for the blades is located some short distance away from the wall hanger for the knives. At the end of each shift the senior supervisor on duty conducts an inventory check to record that all knives and blades are accounted for and have been returned to their respective hooks on the wall hangers.

On Sunday, 16 August 2020, a short time after the shift had finished at 6:30 pm, the senior supervisor on duty conducted an inventory check and noticed that knife number 4 was missing from the number 4 location on the knife wall hanger. The supervisor subsequently telephoned the applicant and enquired about the missing knife number 4. The applicant suggested that she may have mistakenly put her knife into a black tub near where the knives were washed. The knife could not be located despite the applicant and the supervisor using a video call as part of the search process.

The applicant was not rostered to work on the following day, Monday, and she did not respond to messages from the respondent’s harvesting manager, requesting that she contact the respondent regarding the missing knife.

On Tuesday the applicant attended the workplace and commenced her next rostered shift at 7:30 am. Shortly after commencing her shift, the applicant found her missing knife which had been incorrectly placed on the hook of the blades wall hanger behind where she had hung her blade. After she had found her missing knife, the applicant told the respondent that the knife had been found. The applicant then proceeded to carry out her duties.

Later that day, the applicant was called into a meeting. At this meeting the applicant was asked about the circumstances surrounding the missing knife and its subsequent discovery.

The respondent`s HR Manager investigated the missing knife incident.

The applicant was stood down from her employment and was provided with a letter to attend a meeting in 2 days’ time regarding her employment.

The applicant attended the meeting with a support person and shortly after the meeting commenced was handed a pre-prepared letter of dismissal.

The dismissal letter said that the conduct of the applicant in respect to the missing knife incident caused serious and imminent risk to the health and safety of a person, and it caused serious and imminent risk to the reputation, viability, or profitability of the respondent’s business, and it also represented the applicant’s failure to carry out a lawful and reasonable instruction. The respondent considered that the applicant’s conduct constituted serious misconduct warranting summary dismissal. However, the dismissal letter also advised that the applicant was to be paid five weeks in lieu of notice together with any accrued entitlements.

Commissioner Ian Cambridge found the respondent adopted an “entirely unjust and unreasonable” process.  The applicant was dismissed without first giving her a chance to plead her case and “show cause as to why her employment should not be terminated.”

Given the respondents dedicated HR management specialists, the commissioner said its “erroneous procedure that avoided any proper show cause process” was “somewhat surprising,” and its “severely flawed investigation upon which it drew hasty conclusions which involved the predetermined dismissal was unfortunate.”

Commissioner Cambridge said there was evidence of a “further issue concerning the reasons for the dismissal” which appeared to have a connection with the applicant’s failure to respond on her day off. He said an employer “may consider it desirable for an employee to engage in communications with the employer or voluntarily attend the workplace at times when that employee was not rostered for work.” But he said employers “cannot impose an obligation” to devote non-working time towards their interests and “on any realistic and objective contemplation, it would be unreasonable” to dismiss someone for failing to do so.

He said the applicant had a “long, unblemished work record which contrasted strangely” with four disciplinary warnings she received between February and June last year.

Concluding the dismissal was harsh, unjust and unreasonable and that the applicant had not sought reinstatement the Commissioner Cambridge ordered the respondent to compensate the applicant six months’ pay of $19,240, the maximum available under the Fair Work Act’s s392 ()5

Helen Robertson v Imperial Mushrooms Pty Ltd [2021] FWC 1332 (19 March 2021)

This article has been prepared for information purposes only and is not legal advice. For legal advice regarding your specific circumstances, please contact WR Law directly on (03) 5499 6131 or by email at admin@wrlaw.com.au

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