The Christmas/New Year period provides employees with an opportunity to celebrate 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. As a result, employers may now been dealing with the ramifications of any incidents which occurred during this period.
An employee was involved in a 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. The employer dismissed the employee for serious misconduct.
When considering the employee’s subsequent unfair dismissal claim, Fair Work Australia found that:
- No proper investigation had been undertaken.
- The relevant manager displayed manifest bias.
- The manager had pre-determined his views before hearing from the employee.
- 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 decided the employee’s termination was unfair and awarded compensation.
Proper investigation is the key
To minimise the effect of any claims for unfair dismissal, you should take steps to properly investigate the incident and provide procedural fairness to employees during the process.
The Employment Law team at Everingham Solomons is well equipped to assist you with all your workplace relations issues because Helping You is Our Business.
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