In this case the Hospital’s HR practitioner conducted an internal investigation in which it wrongly accused Ms Nicolson of assaulting a fellow employee during a dispute over rosters. As a result of the internal investigation Ms Nicolson’s employment was terminated.
The AIRC found that the investigation was faulty and had been conducted in a “completely unprofessional” way by the Hospital’s HR practitioner. Part of the reasons for the decision was that the HR practitioner had refused to make copies of all records available to Ms Nicolson, including copies of all of the allegations made against Ms Nicolson. The AIRC also found that a senior employee was biased in his evidence against Ms Nicolson in the investigation. The AIRC specifically stated that Ms Nicolson was entitled to full disclosure of everything that was going to be used against her. The AIRC was particularly critical of the Hospital’s HR Practitioner, finding that her actions smacked of a poor concept of Ms Nicolson’s rights, particularly in light of the HR Practitioner’s claimed experience.
The AIRC concluded that there was no basis for the finding in the investigation that Ms Nicolson had assaulted a fellow employee during a rostering dispute. In fact, the AIRC found that Ms Nicolson was the victim of assault by a fellow employee rather than the perpetrator of the assault.
The AIRC also found that the HR practitioner’s conduct was in breach of the Hospital’s own Code of Conduct and the values expressed by the Hospital.
The AIRC ordered that Ms Nicolson was to be either reinstated to her former position or to a different but equivalent position. The AIRC provided the option of reinstating her to an equivalent position because of the poor attitude of the more senior employees in the area Ms Nicolson had worked in the Hospital. The AIRC also ordered that the Hospital pay to her compensation for lost earnings.
HR Tip : Employers must ensure that investigations conducted by the Company are procedurally fair and that any findings made from the investigation can be supported by the evidence provided in the investigation. Usually, this does not require providing an employee with all material relating to allegations against the employee, however, the employee should be informed of all details of the allegations against her.
Conducting a faulty investigation can lead to an employee’s success in an unfair dismissal claim - To learn more about this author, visit Jessica Lee's Website.
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Jessica Lee
(Visit Jessica's Website)
Jessica joined Australian Business Lawyers
in March 2004 and is a Senior Associate
with the firm. She regularly provides
advice and represents clients ina wide
range of employment and industrial law
matters including industrial disputes,
unfair contracts and unfair dismissals.
Jessica has also represented the interests
of various emplyoers in a number of
different tribunals and Courts.
Jessica’s achievements in discrimination
law were awarded with the NSW Bar
Association Prize for excellence in the
subject Anti-Discrimination Law after her
studies at University. Since then, Jessica
has provided advice to clients in relation
to discrimination matters and assisted in
preparing responses to the relevant
government bodies in the event that a
discrimination claim is made.
Jessica has conducted numerous independent
investigations into complaints of
bullying, harassment and sexual harassment
and provides assistance to employers that
are conducting investigations into
workplace grievances and complaints.
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