Dismissal, Behaviour, Investigations

Bullying; Harassment; Sexual harassment; Workplace investigations; Unfair dismissal

Consultation: is a dismissal harsh, unjust or unreasonable without it?

Does an employee have to be consulted, in accordance with an applicable industrial instrument, about their impending termination? According to a recent decision1 by the Fair Work Commission (FWC), not necessarily. But what about the obligation under the industrial instrument to consult with an employee before terminating their employment? Deputy President Binet (DP Binet) said that…

Why sacking senior executives is a risky business

Since the enactment of the ‘adverse action’ provisions under the Fair Work Act 2009 (Cth) (FW Act) some 10 years ago, it is far more difficult for an employer to lawfully dismiss an executive or senior manager. Why? Because adverse action claims: are relatively easy to bring; can include compensation for hurt, distress and humiliation (and damages…

Full Bench quashes ruling that CCTV footage of employee’s serious misconduct was inadmissible

Full Bench quashes ruling that CCTV footage of employee’s serious misconduct was inadmissible The Full Bench of the Fair Work Commission has quashed a Commissioner’s ruling that a Krav Maga Institute’s installation of CCTV devices failed to comply with the Workplace Surveillance Act 2005 (NSW) (“WS Act”) and that the CCTV footage it had obtained had been…

Initial considerations of a workplace investigation

Is an investigation needed? If so, what style of investigation to use?  Here is a checklist of eight initial considerations when determining if an investigation is required, and if so what style of investigation to use. Determine if an investigation or similar process is required: If there has there been a specific complaint about workplace conduct…

Should NDAs be restricted in sexual harassment cases?

Our workplaces need to change the culture of silence around sexual harassment. Legal experts offer their advice. In Australia the general practice for resolving disputes (other than going to court) has a standard formula: the parties negotiate terms of settlement that are acceptable to them; the terms of settlement are incorporated into an agreement; and…

Serious misconduct: a salutary reminder

We still see many clients whose disciplinary policies dealing with misconduct require sequential warnings before an employee’s employment can be terminated for misconduct, unless the conduct amounts to ‘serious misconduct’. The prescriptive nature of these policies reduces an employer’s discretion to determine a sanction which is appropriate to each individual case. The result? Employers scrambling…