Thinking | 12 August 2018

Near enough can sometimes be good enough

Investigating misconduct complaints in the workplace is never easy for any employer, but the recent decision of the Fair Work Commission in Natoli v Envision Employment Services [2018] FWC 4034 should provide some comfort: an investigation need not be perfect for an employer to be able to rely upon it in dismissing an errant employee.

In the case, Mr Natoli, an employment services supervisor, was dismissed by Envision following the substantiation of allegations that he had:

harassed a female jobseeker by asking her out and insisting she drink from his coffee cup
called two other female jobseekers ‘witches’ and made a ‘two finger gesture’ towards them (Mr Natoli apologised for the gesture at the time, saying that he didn’t mean to offend them and that, in Australian culture, ‘we sort of do that’)
intimidated a jobseeker who had raised concerns about his behaviour and
refused to otherwise apologise for any offence or distress he had caused the jobseekers.

Hearing the unfair dismissal claim, Commissioner Anna Cribb had no trouble in finding that Mr Natoli’s conduct towards the female jobseekers constituted a valid reason for his dismissal, particularly given that the women were vulnerable and disadvantaged people and Mr Natoli was in a position of authority as a supervisor. In the Commissioner’s view, the lunch invitation, coffee incident and witch comment all strayed ‘outside the bounds of appropriate behaviour for a supervisor and a participant in the workplace’ and it was ‘difficult to accept’ that Mr Natoli did not understand that his two fingered gesture was completely inappropriate.

But the ‘serious flaws’ in Envision’s disciplinary process gave the Commissioner pause for thought. Mr Natoli contended that he had not been given an opportunity to respond to at least two of the allegations relied upon for his dismissal. He also complained that the allegations lacked specificity and seemed to suggest a conclusion when the purpose of setting out allegations is to get a response to alleged factual occurrences. The Commissioner expressed her ‘concerns from a procedural fairness perspective’, but she ultimately concluded that ‘on fine balance’ Mr Natoli’s dismissal was not harsh, unjust or unreasonable.

So while the balance, in this case, tipped in favour of the employer, it was a close call and the lessons to be learned by all employers from the case include:

Allegations of misconduct should always be put to the employee in writing.
Allegations should be factual, dispassionate, clear and specific.
When framing allegations, never use headings which suggest conclusions or findings.
Disciplinary decisions should only be based on allegations already put to an employee and which the employee has had the opportunity to respond to.