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Racial discrimination? It's just not cricket

18 July 2013

The current media coverage of former Australian cricket coach, Mickey Arthur's sacking may provide some valuable lessons to employers.

Arthur took on the role in November 2011 and during his tenure it was hoped he would be able to tackle tensions within the Australian team. However, disciplinary problems and reports of poor off-field conduct have been in the press recently and have been cited as reflecting badly on the coach's progress and methods

Following the difficulties he experienced with implementing what some have described as a "cultural change" and several recent lost games for Australia's struggling side, Arthur was relieved of his duties as coach.

Subsequently, the former coach lodged an application with the Fair Work Commission which included claims of discrimination on the basis of Arthur's South African nationality.

As quoted in the Age, the former coach is unhappy that details of his application have been made public; "The matters raised in my application to the FWC concerning issues within the Australian cricket team are very sensitive, which is why I was at pains to keep them confidential, especially at this time. I have kept them confidential, unfortunately others have now made them public."

CEO of iHR Australia, Stephen Bell believes that despite Arthur being a public figure it is very difficult to judge any situation on the basis of second hand stories; "This same problem occurred with former Methodist Ladies College Principal, Rosa Storelli where the reasons for her dismissal remain somewhat blurred even today. I feel most uncomfortable that we judge the actions of either employer or employee without knowing the exact facts."

Bell added; "Arthur's efficacy as a coach has clearly been called into question, he in turn has cited a lack of support from the governing body (regarding "homework gate") as an issue in his application to the FWC. When things go bad, it is tempting to lay the blame wherever possible and to try to find a quick fix. In my experience, when it comes to behaviour and cultural change, there is no such thing. Playing the long game and having the management team on board are essential in creating a lasting change to team culture."

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While Arthur has been labelled a "scapegoat" with the issue openly discussed in the media both in Australia and abroad, the reports of performance concerns that led to his dismissal have not been condemned. However, the process followed in terminating the former coach's employment has come under fire. The UK's Telegraph newspaper questioned whether his dismissal had been carried out using the correct procedure. The newspaper noted that the sacking was enacted under a performance clause in Arthur's contract but states that he was not given the written notice and opportunity to improve his performance required by Australian workplace law.

While it is unclear if the terms of Arthur's contract or other applicable legal obligations have been breached, employers should take heed of two important lessons in these events; the value of confidentiality and the importance of procedural fairness.

Unfortunately for those in the public eye, it is not uncommon for sensitive details to be made public. However, under ordinary circumstances when an employer receives a complaint that warrants a workplace investigation, confidentiality can and should be maintained. This ensures fairness to all parties and protects the integrity of the investigation process.

Although Arthur has chosen to raise the issue of racial discrimination in his application to the FWC, whether or not this is founded, the point regarding the required notice which was reportedly not afforded him, may still stand.

iHR Australia's Director of Workplace Relations, John Boardman cautions: "The lesson to employers here is clear; when taking action on poor performance or terminating employment, ensure you are following the correct procedure. This means checking the terms of any relevant employment contracts and employment policies. Other legal obligations may also apply such as the National Employment Standards and other obligations imposed by the Fair Work Act 2009. Don't just assume that awards or agreements don't apply to people because they earn a higher salary then specified in the award or agreement. Following a proper process will help your organisation to demonstrate that it has acted properly should a workplace investigation into any claims of unfair treatment such as bullying, harassment and / or discrimination occur."

Most cases are complex and it is prudent to seek expert, professional advice before taking action rather than calling for help after the event.

According to some newspaper articles, Mickey Arthur is seeking to sue his former employer for $4m. Should your organisation experience an unfair dismissal, adverse action or discrimination complaint, it may not end up on the front page; however, it could prove costly to your organisation's external reputation, internal morale and profit reporting.

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