A recent case before the Fair Work Commission where a HR Manager was dismissed for taking her personnel file without permission, shows the importance of employer’s intervening early to prevent workplace disputes spiralling out of control and becoming formal legal matters.

 

The Payroll, Tax and Accounting Manager had worked at a multinational health and beauty product provider for over four years before relations soured with her colleagues after a meeting in September 2015. The employee also acted as the company’s HR Manager. At this meeting, the HR Manager participated in a discussion with a number of other managers regarding accounting for stock that had been written off because it could not be sold once it had passed its “use by” date.

On the following Monday one of the managers present at the meeting emailed the HR Manager, criticising her role in the meeting. The manager accused her of acting improperly in discussions over the written-off stock worth more than $65,000. Upset by the allegations, the HR Manager vigorously denied improper conduct and demanded a written apology from her colleague in regard to his allegations about her conduct. A formal complaint was then lodged by the HR Manager triggering a workplace investigation, conducted by an external law firm.

To the HR Manager’s surprise, the law firm’s investigation rejected her complaint, finding her conduct during the meeting was unjustified, especially given her role as a HR manager, and recommended that she refrain from providing any advisory functions until she participated in training sessions to improve her interpersonal and communication skills. The report’s findings were not accepted by the HR Manager and she continued to pursue her colleague requesting an apology for the email that was sent after the meeting.

The colleague subsequently made a complaint to his supervisor about the HR manager’s continued “agitation” of the matters associated with the complaint. The HR manager was placed on special leave, with pay, and directed to attend a fitness for duty assessment.

Prior to going on leave, the HR manager took her HR file home with her, without the employer’s approval, as she believed her employment was being threatened. She engaged a lawyer and raised a number of concerns about the employer’s conduct during the investigation process, including that her procedural fairness rights had been “trashed”, that she was a victim of bullying and that she objected to attending a “phoney doctor’s appointment”.

The employer’s law firm wrote to the HR manager’s lawyer requesting she return the file, warning that if she failed to comply with the employer’s lawful and reasonable direction, her actions would be viewed as amounting to serious and wilful misconduct for which she could be dismissed. However, she did not respond to the warning and the company dismissed her for failing to follow a lawful and reasonable direction.

The HR manager contended she was entitled to more than $55,000 in compensation for unfair dismissal because there was no valid reason for her dismissal. She acknowledged that she took the file but said that she did so for fear that the company would manipulate it. She also claimed that she was unaware of the company’s directions to return the file, despite the company’s claims that it made up to seven formal requests for the return of the file.

The Commissioner described the chain of events that led to the HR manager’s dismissal for serious misconduct as “unfortunate”, but found her actions in removing the file provided a valid reason for dismissal.

 

While workplace investigations have their role in resolving workplace disputes, in this instance a softer approach such as mediation may have been more appropriate prior to the employer initiating a workplace investigation. Once a workplace investigation is initiated, both parties can put up their guard and it can be difficult for them to re-establish their working relationship.

Having an impartial third party facilitator to structure discussion between the parties may have helped both parties understand each other’s perspectives, find common ground and re-establish their working relationship.

While the employee’s unfair dismissal claim was unfounded, the employer would have potentially incurred several costs as a result of the dispute:

  • Lost productivity due to time taken away from core work matters to prepare for meetings with solicitors
  • Loss of a HR Manager as a result of the dispute, described by the Fair Work Commissioner hearing the case as having an ‘outstanding” work record
  • Disputes such as this can affect an employer’s brand and employer of choice status.

 

iHR believes that prevention is the best cure. iHR’s mediators are highly experienced and can assist parties to move forward in a safe environment and help re-establish a working relationship. Mediation can be provided onsite or at a neutral location. Generally, mediation is more cost effective and less time consuming than formal proceedings. Contact iHR today to find out more about principles of conducting an effective workplace mediation, focusing on best practice process and the skills required of an effective mediator.

 

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