The Fair Work Commission has recently upheld a dismissal[1] of a senior HR manager for engaging in serious misconduct and acting dishonestly during a workplace investigation.
The HR manager’s conduct, in effect, repudiated her employment contract by damaging the mutual trust and confidence inherent in contemporary employment relationships.
The employer’s workplace investigation, already at a disadvantage by virtue of it being without its primary HR internal advisor, nevertheless managed to satisfy the Fair Work Commission that the dismissal was neither, harsh, unjust or unreasonable.
Background
At the time of the incident in question, the HR Manager had been employed directly for approximately 10 months. The HR Manager’s direct superior was the CEO, who at the time was on extended leave.
Two members of a new board of directors, appointed on 13 December 2012, were due to visit the employer’s workplace a week later in order to obtain HR related information and documents.
On 21 December, the day of the visit, the HR Manager pre-emptively phoned an employee and told him to say nothing to the board members during their visit.
The dismissal
After the Board learned of the HR Manager‘s actions, and following an internal investigation, the HR Manager was summarily dismissed on the basis that she had “unlawfully instructed another staff member to not cooperate with the Board” which had constituted “serious misconduct”.
Importantly, the HR Manager had also made a number of denials to questions during the workplace investigation, which were in substance dishonest, and thus negatively impacted on the relationship of trust and confidence with her employer.
The HR Manager‘s claim
The employee filed an unfair dismissal claim with the FWC. She alleged multiple grounds as to why her dismissal was unfair including:
- The employer did not have a valid reason for the dismissal as the telephone conversation in question (non-cooperation direction) never occurred
- The employer had failed to make clear whether there was a grievance, whether there was an investigation on foot, or which workplace policy was allegedly breached; and
- There was an inherent lack of procedural fairness throughout the workplace investigation.
The FWC decision
Not unsurprisingly, the hearing of unfair dismissal claim involved conflicting evidence from the employee and the employer.
However, during the hearing, the FWC generally preferred the evidence given for the employer over that of the sacked HR Manager.
The FWC found:
- The conversation in which she directed non-cooperation with the Board had in fact occurred
- The conduct engaged in by the HR Manager (ie. non-cooperation direction) was misconduct and a valid reason for her dismissal
- During the workplace investigation, the employer was entitled to ask the questions that it did of the HR Manager
- The HR Manager was obliged to answer those questions honestly
- The HR Manager sought to mislead her employer with repeated dishonest denials
- The HR Manager was given ample opportunity to give an honest response but chose not to do so
- The HR Manager’s dishonesty meant that the employer could not be confident that she would be honest in the future which severely impacted on the ability of the employment relationship to continue
- The failure to answer honestly destroyed the relationship of trust and confidence between the employer and the HR Manager
- The HR Manager was not denied procedural fairness during the investigation
- While there is no general right for an employee to be offered a support person during a misconduct investigation, the HR Manager, as a senior employee, was aware of her right to request a support person and failed to do so
Lessons for Employers
After learning of the HR Manager’s behind the scenes deceitful direction not to cooperate, the Board had a choice:
- Either take disciplinary action then and there
or - Conduct a proper workplace investigation which would properly gather evidence and provide the HR Manager with an opportunity to respond to allegations
Thankfully for this employer, it chose the latter option which enabled its actions and subsequent dismissal of the HR Manager to be fully supported by the FWC.
Many employers make the mistake of succumbing to their anger and disappointment when learning of an employee’s treachery. Unfortunately, succumbing to those emotions instead of conducting a methodical workplace investigation can mean that the employer denies itself of the opportunity to gather valuable evidence which would support its right to take disciplinary action for misconduct.
In this case, the employee effectively “shot herself in the foot” by making consistent dishonest denials during the employer’s workplace investigation thus giving even more justification for the decision to dismiss her.
Remember – failing to investigate can play right into the hands of a deceitful or desperate employee.
[1] Rebecca Jones v Brite Services [2013] FWC 3392 (29 May 2013)
