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Smart workplace advice

Unfortunately the employer, Bamboo Direct Pty Ltd [1], found out the hard way.

In this case Fair Work Australia ruled that while an employer may have a valid reason to dismiss a workplace bully, the investigation’s procedural inadequacies made the dismissal unfair.

Rather than being the outcome of a proper investigation, the employee’s dismissal was found to be a pre-determined outcome. The flawed investigation failed to give the employee an opportunity to respond to any allegations made against her and denied her the right to have a support person present at any discussions leading up to her termination.

Given her repeated undermining behaviour directed at fellow staff and management, had the employer conducted a proper HR investigation it would have been highly likely that the bully’s claim would have been thrown out by Fair Work Australia.

It is well established that workplace bullying can be a valid reason for dismissing an employee. However, employers will place themselves at risk of their disciplinary actions being overturned if they fail to conduct a proper HR investigation after becoming aware of the suspected workplace bullying.

So what should you do?

  • Plan your investigation
  • Know who are your witnesses and what you need to ask them
  • Know how to properly remove the alleged wrongdoer from the workplace
  • Know how to manage the expectations of the complainant, witnesses and the alleged wrongdoer
  • Carry out the investigation
  • Provide natural justice (otherwise known as procedural fairness)
  • Ask the right questions of the alleged wrongdoer
  • Make the right decision
  • If necessary – appropriately deal with a disappointed party
  • Put the right steps in place to make sure it never happens again

[1] Blackford v Bamboo Direct Pty Ltd [2011] FWA 7124 (11 November 2011)

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