When It Goes Wrong!

Workplace functions can be fun and can also cause a lot of headaches for employers

Case by the Fair Work Commission

An employee had consumed large amounts of alcohol at a work function and was involved in a number of inappropriate incidents with fellow employees and management. The Employee conducted himself in an inappropriate manner.

The Facts:

• Sexually harassed multiple employees both physically and verbally

• Bullied another employee on multiple occasions

• Swore at his manager

• Harassed an employee on multiple occasions

The Result

The employer decided to terminate this employee due to his behaviour and actions however the Fair Work Commission held that the dismissal was unfair.

There reason behind this decision was their claim that the allegations against him were never truly put to him. The Commission concluded that during the investigation, the employee was not provided with procedural fairness because he was asked general, open handed questions and therefore unable to respond appropriately. Furthermore, the Employee was not provided with a support person throughout the investigation.

Our Advice

When an investigation takes place, ensure you conduct a thorough investigation by paying attention to the entirety of the incident. There are many points to consider when conducting an investigation however as a general rule of thumb, we recommend the following:

• Gain details of the incident

• Use Witnesses

• Explain in detail, the allegations against the employee

• Advise the employee that their role may be terminated as a result of this incident

• Allow the employee a support person throughout the investigation

• Provide an opportunity and enough time to respond

• Always afford the employee investigated with procedural fairness

How can we Help

Our staff possess over 15 years experience in Human Resources and we can help your business with the “know how” on how to deal with employee issues.

Outsource your HR and Payroll to us and focus on what really matters, your business!

Unfair Dismissal and Flexible Working Arrangements

Employer fined $20,882

Ms Khutson, a full-time employee of Pay Per Click has been with her company since November 2014 and was recently informed that her hours of work will change from 9am to 5pm with a 30-minute lunch break to 9am-5.30pm with a 60-minute lunch break.

Initially, Ms Khutson agreed to the change however she advised her employer that this will affect personal commitments on Mondays and Wednesdays thus requesting to leave at 5:15pm and shortening her lunch break by 15 minutes.

The employer refused and Ms Khutson was advised that if she did not sign her revised employment contract, her employment may be terminated. Ms Khutson refused and as a result, her employment was terminated by email.

When the Fair Work Commission (FWC) heard this case, they found that the employer was guilty of contravening the NES Standards. Specifically, by not providing Ms Khutson her right to request Flexible Working Arrangements. As a result, Ms Khutson was awarded 17 weeks of salary worth $22, 882 and the employer was fined $20, 882.

Advice for Employers

Flexible Working Arrangements

Are Part of the NES Standards

Under the Fair Work Act, Employees are entitled to request a flexible work arrangement and it is unlawful to refuse any request unless reasonable grounds have been determined.

Upon a request for a flexible working arrangement, we recommend businesses consider the following:

• Nature of the work performed by the employee
• The employee’s parental or carer responsibilities.
• The timing of the request
• How much the arrangement will cost.
• What effect the arrangement will have on other employees and your business.
• The positives and negatives to your business and the employee
• Whether other legal obligations will be breached by modifying the work arrangement, e.g. health and safety laws.

How can we Help

Our experts can provide your business with tailored advice and solutions to help your business meet their legislative requirements.

We offer Employment life-cycle services spanning Payroll advice & outsourcing, Human Resources advice & outsourcing as well as Safety documentation all through our cloud based customised software solution.

Outsource your HR and Payroll to us and focus on what really matters, your business.