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Conducting a faulty investigation can lead to an employee’s success in an unfair dismissal claim
Written by: Jessica LeeArticle Overview: The AIRC ordered Melbourne’s St Vincent Hospital to reinstate an employee and ordered compensation for lost earnings after it found that a pathology courier employee’s (Ms Nicolson) dismissal was unfair.
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Free Download - Duty of care includes protecting employees from violence outside of work By Jessica Lee |
Conducting a faulty investigation can lead to an employee’s success in an unfair dismissal claim
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.
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About the Author: Jessica Lee RSS for Jessica's articles - Visit Jessica's website  Click here to visit Jessica's website   Duty of care includes protecting employees from violence outside of work Employer successfully questions an employees medical certificate Conducting a faulty investigation can lead to an employees success in an unfair dismissal claim Flawed investigation leads to monetary compensation for former employee |
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SR & ED
- It depends on a number of factors, whether you should complete your own claim or not.
Firstly, do you have the time to devote away from your business?
Secondly, do you know the requirements to write a report including what constitutes technological advancements, in a systematic investigation format, and your current knowledge base to begin with?
Thirdly what industry are you in, how many employees are you claiming, equipment etc., and are you aware of the technical and financial filing procedures with CRA?
Clearly my opinion is biased, working as an SR&ED consultant, however it would be a good idea to get one to initially guide you along for starters, and the fees are usually respectable in lieu of the financial refunds you can gain.
Hope that helps, if you need more contact me directly.
Cheers,
gbs
Re: How Can I Make Money Out of This Need?
- This is information age and people pay for information. what is standing between then and getting their refund is lack of information. If no one inform them the money will be there unclaim for many years. You can create a report on it and sell it to them. Your report could include how to claim their refunds and where to claim it. This is my own opinion
Re: Should you hire ambitious workers or employees with no goals
- [quote="TheRainmaker":4eq894a4]Thanks Shri,
I really hate the word GRUNT.
I had a client once who called his staff 'minions'. he didnt last long as a client...I just hate the negative perspective in anything.
realist yes, pessimist, no.[/quote:4eq894a4]
Hi Jude and Shri,
I'm not saying that it's good to call anyone a "grunt", but the truth is many people are treated like one everyday.
I was recently watching the reality show "Making the Band 4" and P. Diddy (aka Puff Daddy or Sean Combs) was telling one of his employees, Aubrey (from the group Danity Kane) that he was the CEO and he didn't have to communicate his plans or vision for his company to her. More importantly, if Aubrey didn't like the way he does business, she has the choice to walk away/quit. At the end of that show, Diddy ended up firing Aubrey for always causing trouble and feeling she was ENTITLED to certain things.
In addition, owner of Sky Sport Gym (and star of Bravo's "Work Out"), Jackie Warner undermined one of her trainers by stepping in midway through a boot camp to take over. Jackie's trainer was very upset, but rather than apologizing Jackie simply said something along the lines of "I'm the owner and I can do whatever I want. If you don't like it, you can work for someone else."
The problem is that most employees claim ownership over their "jobs" because they put a lot of hard work and time into them... but the reality is that the owners can treat them as kindly or disrespectful as they want. And the only option for the employees is to stay or leave.
Re: Old boy network vs qualifications
- [quote="OmnivoreInk":26kthyjz]Basically this is what's called nepotism! Or the old boy network. Friends getting friends and family of friends jobs.
Which is fine if the person is actually qualified to do the job they're given...
But it can generate jealousy, if other people feel the person was given the job based solely on who they know...[/quote:26kthyjz]
I know it can be unfair, but life's unfair in many cases. Besides people shouldn't hate or be jealous of those who got a "free pass" into the company because they would do the same if given the opportunity.
How many students got summer or entry level positions because of who they were related to in most large companies? If you had the choice between working for minimum wage or making 3 times as much per hour working at your mother or father's company... which would you pick? Moreover, I don't think people should be ashamed or have to apologize for accepting a handout just so long as they don't take it for granted (i.e. they work hard to ensure they do the best job possible).
Don't hate the player, hate the game.
Women care about employees
- I think women entrepreneurs care more about their employees than men so it makes sense that they would consider how the new owner would impact the employees.
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