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Friday Workplace Briefing

Getting Discipline Right and How to Avoid Going Very Wrong

In this week’s Friday Workplace Briefing, Andrew Douglas and Nina Hoang discuss the discipline process; how to get it right and importantly how to avoid it going very wrong.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: So we come to the major topic for today. And it’s odd that we are talking about this, Nina. I got to tell you. But it’s pretty important that we are. We’ve seen probably in the last six to eight weeks, 10 to 15 matters of discipline go wrong.

Nina Hoang: Yeah.

Andrew Douglas: We’re involved in, I think on my last count, about six investigations. And all of them, as we go through this process, missed some of the fundamentals. But let’s just go to the case that tells the story, which is what provoked me to send you a text about 10 o’clock at night and say, “Have you read this, Nina?” Which is the Department of Justice. Now, talk us through the facts on that.

Andrew Douglas: Yeah, so it was kind of anti-VAX case. He didn’t get vaccinated. He got his first vaccination. Had a really adverse reaction. Tried to seek his second one in line with the requirements of Victorian government department, I think. And was actually knocked back by the vaccine hub ’cause they said, “You need to get more medical tests, and we can’t do this for you.” Went back to his employer and they said, “No. We need you to have two vaccinations.” He said, “Look, can I do something else? Can you transfer me to another role? I’m willing to work.” They said, “No. We’re just going to fire you.” No clear process. Didn’t follow their policy. Just shocking. Shocking.

Andrew Douglas: And none of you would be surprised to learn they completely lost. They just got hammered. And they got hammered for this because he actually did have good evidence as to why he couldn’t do it. And it was lawful for him not to do it. In fact, it was entirely appropriate for him not to do it.

Nina Hoang: Yeah.

Andrew Douglas: Secondly, they didn’t even follow their own policies about alternative duties, nor did they follow down the path of any of the evidence to determine if he could get a vaccination and how they would manage an interim. So they never created the plan around the problem they had.

Nina Hoang: No. And the other thing was he caught COVID during the process. And so, the doctor said that for a four month period after getting COVID, he was completely safe to work. And they ignored that and said, “No. You still can’t work.” It’s just…

Andrew Douglas: Now, I know when we’re saying this to you, you’re going to say, “Oh, we never do that.” We never do that. We’re very good. We never do it. Well, I put the children through university and private schools as a result of people saying they never do that. So look, can I… The things I want to say are really dumb things. And that’s not unusual for me.

Nina Hoang: And obvious things to most of you.

Andrew Douglas: Yeah. Yeah.

Nina Hoang: It’s just a good reminder for Christmas.

Andrew Douglas: What is the wrong thing that occurred? And how wrong is it? And I want you to just sit in a room quietly, remove the red flag hat that the person’s wearing you don’t like and go. Okay. And what have we done with that in the past? When someone’s done that, what have we done without in the past? Okay. Okay. Well, we didn’t sack that person because I like them. Big warning. Next thing is, what is the evidence?

Nina Hoang: Do you have direct evidence?

Andrew Douglas: Yeah.

Nina Hoang: Not circumstantial. Not people saying, “Oh, I think I heard this.”

Andrew Douglas: What is the actual evidence? All of them, and I see the handwritten notes, I see all the witness statements that come in. but it’s not evidence. Most, it’s impression.

Nina Hoang: Yeah. And you have to test the evidence, see if other people can agree that this happened or go to the person being accused because they might have another explanation.

Andrew Douglas: Yeah. This is sort of like the horse on football club racism where they interviewed a group of indigenous players, and then didn’t test it against non-indigenous people-

Nina Hoang: Yeah.

Andrew Douglas: …and they said it was racism. So you have to take the evidence and actually test it.

Nina Hoang: Yeah.

Andrew Douglas: Okay? So once you’ve got the evidence, and if we look at the case we are talking about, there was very clear evidence the person had an illness. There was a response which was dangerous to them. There was clear evidence if they had have gone to the doctor, what the impact of a second vaccination would be. There was clear evidence about the fact that he had COVID and level of immunity he gave him and safe to work. She did lots of things you’d want to be listening to, aren’t they? And you’ve got the power under BHP grant to go and say, “Well, look, I need that independently verified.”

Nina Hoang: Yeah.

Andrew Douglas: So you could say-

Nina Hoang: And he gave them that information.

Andrew Douglas: Yeah. And still not happening. And you’ve clearly, once you were seized with that information, got to look at a way of doing reasonable adjustments around it. Discrimination law, none of that’s happened. So I’ve done all that. I’ve got to the position. I know what’s wrong. I know how wrong it is. I’ve gone and got what the evidence is. Yep. It’s sort of lining up. Then, I’ve got to look at the personal record of the person. How long have they worked for me? Have they been a good employee? If it’s an obvious wrong, then I should say quite clearly. And I must say in an interview process, “Look, Nina, you’ve done this. Is there anything happening at home or outside of work-”

Nina Hoang: Yeah. Extenuating circumstances.

Andrew Douglas: Yeah.

Nina Hoang: People never consider that.

Andrew Douglas: Yeah. And we keep finding out about it, the commission at conciliation.

Nina Hoang: Yeah.

Andrew Douglas: Where the person comes along and say, “My partner left me.”

Nina Hoang: Or, “I just had someone die in the family.”

Andrew Douglas: Family.

Nina Hoang: Yeah.

Andrew Douglas: And yeah, “I did drink the night before. And I was angry. And I didn’t have control of it.”

Nina Hoang: Yeah.

Andrew Douglas: But I’ve had two weeks of counselling, whatever.” Then, I’ve got all of that. Then, I go through my policies and procedures, and I tick each part with a checklist and go, “What do I have to do?”

Nina Hoang: Yeah. And that’s a key thing that people forget. When you’re doing the investigation, put it to them whether they know the policy. Have they had training on it, or is it something they’ve never seen before? You’d be surprised how many times they claimed that they’ve never seen it before.

Andrew Douglas: Yeah. But what I want you to do before you start any form of investigation or disciplinary process is create a checklist that goes through your own policies and procedures of what you have to do. ‘Cause remember-

Nina Hoang: Yeah.

Andrew Douglas: …under workers’ compensation law, which is dodgy law, I accept, and doesn’t follow normal workplace law, a failure to follow your own process will completely knock out reasonable management action.

Nina Hoang: Yeah.

Andrew Douglas: Okay. Now, then we look at what are the other risks that exist as you’re going to run this process. Is the person… Is it a red flag? Are they going to allege halfway through that you’re bullying them?

Nina Hoang: Yeah.

Andrew Douglas: What is the worker’s comp risk that looks so? How am I going to offer them support along the way?

Nina Hoang: Yeah.

Andrew Douglas: When I say, “Look Nina, I think you’ve done this. I need to stand you down for a while. But look, here’s the EAP. Did I give you a support-?”

Nina Hoang: Yeah. They’re showing signs of distress. Yeah.

Andrew Douglas: What they’re doing. Okay? So plan it around risk before you start. All these are the things you should think about before you start. Then, put everything you do in writing and ensure the person isn’t able to have a support person.

Nina Hoang: Is able to have a support person.

Andrew Douglas: Is it so? I was very late last time.

Nina Hoang: And then, make sure you implement the right outcome. So considering all those risks, it’s very easy, I think, to focus on the valid reason. And most of the time, you all have a clear valid reason. They had a very valid reason.

Andrew Douglas: So remember your five test. Five tests are: valid reason, which is a threshold test.

Nina Hoang: Yeah.

Nina Hoang: In other words, is it something that someone has done wrong? Which ones? That’s just the test. Yes, it does. Got that?

Nina Hoang: Yeah.

Andrew Douglas: I get over the threshold and I have. Is there a fair process in place? And that’s measured in part. But you must look at the process, which is the tick list.

Nina Hoang: Yep.

Andrew Douglas: Is it harsh personal circumstances?

Nina Hoang: That’s where most of these-

Andrew Douglas: Okay.

Nina Hoang: …matters fall over. Yeah.

Andrew Douglas: Is it unjust? Are you wrong in alluring what you are doing? Is it unreasonable? Does the crime… Does the punishment fit the crime? As Nina said, you got to put those… They’re like cards on the table. You got to pick ’em up and go, “Valid? Yes. Did we have a fair process? Yes, I can demonstrate we had a fair process. Good. Is it harsh? Is what we’re doing going to be harsh to this person because of what? What do I know about this? What are the questions I’m going to ask?”

Nina Hoang: …circumstances. Yep.

Andrew Douglas: “Did I do the investigation the right way? Are the allegations I’m making true.” And if they’re not true, and I’m being unjust.

Nina Hoang: Yeah.

Andrew Douglas: So I must be lawfully right in what I’m doing. And finally, punishment fit the crime. But the one thing I want you all to do is to keep contemporaneous records-

Nina Hoang: Yes, please.

Andrew Douglas: …of every conversation that you have with people because that is the one exception to the hearsay rule. It is evidence of the truth.

Nina Hoang: Yeah.

Andrew Douglas: Your brain after a period of 24 to 48 hours actually distorts truth. So it is actually very reliable, good documents, which court likes to see. And lawyers love to see them because it allows to give you the best advice.

Nina Hoang: Yeah.

Andrew Douglas: So…

Nina Hoang: Anything you can note down would be the best.

Nina Hoang: And remember condonation. Okay? In other words, if you’ve allowed Nina to get away with something but I don’t let Matt to get away with it, then I’m afraid Matt’s going to be okay. If I say to Nina nothing and she comes into work four days late on the fifth day. So I’m going to give you a warning. Nina goes, “But the last four days you’ve said it’s fine.” Every time you allow something you can’t punish to it. Which means you need to draw a line in the sand.

Nina Hoang: Yeah.

Andrew Douglas: Condonation has one twist which we’ll talk about a little bit later, which is condonation will prevent disciplinary processes unless the wrong is so profound-

Nina Hoang: So serious.

Andrew Douglas: …that you’re there to protect a person, then condonation may mitigate the discipline you can take, but it won’t stop it. So be aware of condonation. But, I think it’s a good topic, I’ve got to tell you because it’s one that takes up, I reckon, 20% of our life as lawyers is dealing with people doing the best they can with badly behaving people-

Nina Hoang: Yeah.

Andrew Douglas: …but getting some part of it wrong and finding they’re in the Fair Work Commission.

Nina Hoang: Yeah. I think it’s very easy to get bogged down in how wrong the misconduct is or the past history and ignore the other factors. But they are just as important.

Andrew Douglas: Yeah.

Nina Hoang: And that’s the key message.

Andrew Douglas: Go back to process.

Nina Hoang: Yeah.

Andrew Douglas: To the tick box that we talked about is once you start doing that, the rest speaks for itself. And then, have your five cards in front of you.

Nina Hoang: Yeah.

Andrew Douglas: Valid, fair, harsh, unjust, reasonable. Pick them up, look at them and speak to them. All right. We’re going to go over the case study.

Nina Hoang: All right. So Janine was an assistant operator on a stack-type Flexo Press. She worked alongside her girlfriend, Jasmine. They worked at the hot press printers in Carnegie.

The women were both age 25. Over 80% of the production employees were males over 40. The managing director, operations manager and supervisor all knew it was a robust place for people to work. Swearing was common but not abuse. It was a friendly but very male workforce.

Sexualised commentary was prevalent and engaged in by all levels of management. It was rarely directed at any one woman. But because of the two women’s age, they did frequently get sexualised jokes about their weekends, boyfriends of the like. They managed it all right. Both disliked it but understood best not to cause a problem.

At the Christmas party, Shane, a supervisor told Janine how hot she was and asked her for a date. Janine said no to the date and told him to sober up and stop it. An hour later, Shane was far worse for wear with all the beer he had consumed and came back to Janine. He was angry now, and had been for about 30 minutes. He told others that Janine was a bitch and frigid. One of the people who told was Wilbur, the managing director who laughed and told him to wake up to himself.

When he came back to Janine, he was slurring his words, angry but also crying and shattered her, “What makes you so hot and good you think you can laugh at me offering you a date?”

Others intervened. He was clearly distressed.

The following day, Wilbur, using good process, terminated Shane’s employment summarily.

Andrew Douglas: All right. Question one: Would Shane have a good argument to claim under unfair dismissal? And what would he get if he won? 10 years of unblemished history of service. His wife ran off with his best friend in the morning before the Christmas party.

Nina Hoang: So we had a total disagreement about this because I feel like he should not win an unfair dismissal. He clearly engaged in sexual harassment. But you’re right if we apply the five cards, that’s where it comes by.

Andrew Douglas: So I got the valid reason?

Nina Hoang: Yeah. Very clear valid reason.

Andrew Douglas: Good, fair process.

Nina Hoang: Yes.

Andrew Douglas: Harsh? 10 years of unblemished history.

Nina Hoang: And his wife ran off with his best friend the morning of…

Andrew Douglas: Yeah. Okay. You didn’t find out about that when you did the thing but had you asked him, you would’ve found out out about it. So you’re in a strike. But the big stinker is the unreasonable part of it because there’s condonation.

Nina Hoang: Yeah. It’s clearly a workplace where sexual harassment occurs on a regular basis.

Andrew Douglas: And where Wilbur knew the misbehaviour, knew they were drunk, and the condonation has another twist in the case called Keenan. That is, if you have a Christmas party and you allow alcohol on it, it’s going to be very hard for you to defend an alcohol field occasion because it’s your fault.

Nina Hoang: Yeah.

Andrew Douglas: Okay. So he would win this. And what he’d win is only compensation. With 10 years, he’d probably get 8 to 10 weeks.

Nina Hoang: Yeah, definitely no reinstatement.

Andrew Douglas: There’d be no reinstatement. Okay. Two: What impact would the new Respect@Work and Secure Jobs legislation have on Shane’s unfair dismissal claim particularly the positive duty under the Respect Bill? Okay. That’s the positive duty to prevent sexual harassment and the prohibition under Secure Jobs of sexual harassment. And remember, under the Respect@Work, there’s also the hostile work environment arguments which makes it illegal to do that. I think we need to go to the next part, ’cause I think there’s two parts to this question. So can we go up a slide? No, it’s not.

Nina Hoang: I think the main thing is, well, under all the new changes-

Andrew Douglas: Let’s go the-

Nina Hoang: …harassment is serious misconduct. It’s…

Andrew Douglas: It’s per se.

Nina Hoang: Yeah. And also, there’s higher duties now under the new legislation with positive duty and the hostile work environment to stamp out sexual harassment. So it doesn’t matter if he’s condoned it in the past. I think, the seriousness of it outweighs that.

Andrew Douglas: Yeah. So, you’re right. Now, there is a calibrating up of the nature of serious of non-touch sexual harassment. Okay?

Nina Hoang: Yeah.

Andrew Douglas: It’s-

Nina Hoang: I thought, it should be.

Andrew Douglas: Yeah. No. At its lowest level, which is a hostile work environment unlawful, at that level, it is by definition serious misconduct, and therefore it dilutes the impact or mitigates the impact of condonation. There would still be problems around the use of alcohol as a prominent issue here. Okay? So an unfair dismissal claim. He may lose it when the new legislation comes through. I think, he’d still probably just get over the line, to be honest. But it would be a much closer thing.

Nina Hoang: Crazy.

Andrew Douglas: Or at Queensland legislation, by the way, it utterly mitigates the factors after valid reason, because in the public sector up there, their change of legislation make it very clear that there will be no defence sexual harassment effectively. Let’s go to questions three. You might read this time.

Nina Hoang: So if Janine brought an application under secure jobs to stop the conduct could she also bring anti-discrimination proceedings?

Andrew Douglas: The answer is no.

Nina Hoang: No. Yeah.

Andrew Douglas: Yeah.

Nina Hoang: New changes.

Andrew Douglas: But I’m not sure that’s right. We might come back to another. I think Matt and I need to have another fight about it. But I think the answer is, because under the jurisdiction, you can also seek damages under that jurisdiction. You can’t have it in two different jurisdictions.

Nina Hoang: Yeah. That’s awesome.

Andrew Douglas: Okay.

Nina Hoang: So if Janine brought proceedings for discrimination harassment under the Australian Human Rights Commission Act, and the conduct occurred after Respect@Work commences, what claims would she make?

Andrew Douglas: All right. Interesting case, isn’t it?

Nina Hoang: Yeah.

Andrew Douglas: So she’d do hostile workplace?

Nina Hoang: She would make a stop sexual…

Andrew Douglas: Let’s talk about cause of action though. She could say hostile workplace.

Nina Hoang: Mm-hmm.

Andrew Douglas: Very very powerful at that stage. Okay? Because what it shows is the organisation can’t control a misconduct.

Nina Hoang: And breach of positive duty as well.

Andrew Douglas: Breach of positive duty. And then, quite deliberately a highly particular sexually harassment process that occurred and discrimination that occurred by nature, gender. So really powerful claim would get an injunction or a stop order very very easily because of the hostile workplace.

Nina Hoang: Yeah. And she could bring it directly to the court. She’d get the injunction.

Andrew Douglas: Which is… And once you get to the court, it has to settle. But what’s really important about this is what is a damages claim. So if we take this to the point of trial, her legal cost before trial would be 250, $300,000 you’d have to pay. Her general damages would be north of $200,000 given the nature of what has occurred over a prolong period of time. Certainly, nothing less than 150. And her economic loss would be nothing under half a million dollars.

Nina Hoang: And you have to pay for her cost, too.

Andrew Douglas: That’s right.

Nina Hoang: Yeah.

Andrew Douglas: So you are looking at 800, $900,000 around this claim because of the historical nature of a hostile workplace.

Nina Hoang: Yeah.

Andrew Douglas: The continued failed favour of a positive duty.

Nina Hoang: Yeah.

Andrew Douglas: And then, specific allegations that relate to provable and identifiable events where you laughed and scoffed at them and failed to do it.

Nina Hoang: Yep.

Andrew Douglas: So, you’re in a lot of trouble.

Nina Hoang: Always in a lot of trouble.

Andrew Douglas: Yeah. So we go to five.

Nina Hoang: So there was a detailed policy about work functions at HotPress. The policy said no alcohol was to be served at work functions. Shane’s supervisor, Dale, knew of Shane’s matrimonial problems in the morning, knew Shane attended work affected by alcohol that morning and was very distressed. And knew he was a recovering alcoholic. He had seen Shane at his worst at a prior place of employment when they worked together. He misguidedly thought the party would help him. What?

Andrew Douglas: So the answer is, to all the next questions, the answer is yes. Would he had a successful dismissal claim unvetted? Yes, he would.

Nina Hoang: And then, next slide?

Andrew Douglas: Next slide. Pretty mad successful adverse action claim based on his alcoholism. Yes, he could.

Nina Hoang: Yeah.

Andrew Douglas: And…

Nina Hoang: Undoubtedly, would be at risk of safety law. He’s exposing him to risk.

Andrew Douglas: And attending Christmas where alcohol being served is a psychological hazard? Yes, it is.

Nina Hoang: Yes.

Andrew Douglas: I just want to really ram that home ’cause we’re just about Christmas. If you serve alcohol at a Christmas party when you know it changes people’s behaviour, it’s a psychological hazard. And if you don’t have a control, you’re in trouble. And that’s it folks.

Nina Hoang: Give us a thumbs up.

Andrew Douglas: Give us a thumbs up. See you later.

Nina Hoang: Bye.

Andrew Douglas: Bye-bye.

Check this next

In our last Friday Workplace Briefing for 2022, Andrew Douglas and Mathew Reiman will discuss FCW Lawyers’ predictions for the four major trends in employment and workplace health and safety for 2023; and give you practical tips about how to prepare your business for these trends and challenges.