The HR investigation risks of asking an employee to “a little chat”

In today’s news article, we highlight a case demonstrating why HR investigators need to be clear about the purpose of a disciplinary meeting with an alleged wrongdoer and what can go wrong if they don’t.

The background

At the time of her dismissal, the employee (Ms Ward) had worked as an Advertising Sales Coordinator in her employer’s Agency Division.  Each sales coordinator had a client list to sell advertising to and service.

The employer had an account management system on its computer network which provided a complete billing history of the advertising relationship with clients.  Sales coordinators entered “notes” about client related matters into the account management system.

The Employer decided to restructure. Clients previously serviced by the Agency sales team (including by the employee) were internally allocated to other teams.

The employee didn’t take kindly to the restructure.  She deleted notes “in a fit of pique” that she had made about clients on the account management system, to make it difficult for anyone who took over the employee’s client accounts.

Whilst voicing her unhappiness about the reallocation decision with her manager, the employee informed him of the deletion of her client notes from the account management system.

The investigation

The employer initiated a workplace investigation following the employee’s disclosure. An examination of the employer’s computer system and confirmed that notes had been deleted by the employee.

Some 3 days after the employee’s disclosure, an 8:00am meeting was held by management.  The employer’s Sales Director, who had initiated the investigation, directed an HR Officer to arrange a meeting with the employee.  At the time, the matter was considered “serious” and the Sales Director was considering the employee’s dismissal.

Within two hours, the employee was summoned to a (misconduct) meeting with HR Officer and management representatives.

Following the misconduct meeting, the employer decided to summarily dismiss the employee with four weeks’ pay in lieu of notice (due to her near 20 years of service), the next day.

The employee subsequently filed an unfair dismissal claim[1].

Unfair dismissal hearing – the important points

Fair Work Australia was critical of the employer’s workplace investigation.

FWA rejected the Employer’s attempted characterisation of what was in reality a serious meeting about alleged misconduct, as a merely a “conversation” or “discussion”.

FWA observed that:

• The employee’s ongoing employment was in jeopardy prior to her attending the meeting;
• The employee was called to the meeting without any notice or knowledge of its purpose;
• The employee had no idea of the meeting’s seriousness;
• The meeting, whether deliberate or not, was set in the employer’s boardroom, which one of the manager’s present described as making him uncomfortable;
• Ms Ward was interviewed by two senior members of management and the HR Officer;
• The interview was not conducted with clarity, mainly due to the HR Officer leading the interview with less than 48 hours knowledge of the account management system; and
• This lack of clarity and lack of notice led to the employee being confused, hesitant in her answers and the employer (incorrectly) forming the view that the employee lacked openness and she was untruthful.

FWA held that:

• The employee was not treated fairly nor was there was a valid reason for her dismissal;
• At the misconduct meeting, the particulars of the allegations and surrounding circumstances were not put to the employee in a fair and straightforward way enabling her to respond appropriately;
• The meeting was arranged in such a way in terms of: location; timing and lack of knowledge of its purpose, for the employee to access a support person;
• The employee was not untruthful in her answers; and
• The dismissal was unfair.

FWA overturned the dismissal and reinstated the employee to her original position.

Lessons for employers

When conducting an investigation into workplace misconduct, employers need to be able to demonstrate a fair procedure was adopted.

In particular, HR investigators should:

1. Avoid any actions which could be perceived as trickery;
2. Be clear with an alleged wrongdoer about the purpose of a meeting – including the nature and seriousness of the allegations being investigated.
3. Avoid using vague statements or descriptions which play down the seriousness of the meeting (eg. “needing to have a chat about something”);
4. Provide sufficient notice of the meeting to enable the alleged wrongdoer to seek advice and/or arrange a support person; and
5. Not have made any predetermination about the outcome of the investigation.

[1] Sandra Ward v West Australian Newspaper Limited [2010] FWA 1785 (8 March 2010)