Allegations of misconduct can have a serious impact on both employees and employers alike. Issues arise that question the most appropriate path forward. It may be prudent for an employer to want to terminate employment immediately in some situations, but this might not always be suitable, or indeed lawful. So, what rights do employees and employers have concerning workplace allegations

Rights of the Employer

Summary dismissal allows an employer to terminate an employee on the spot if they have engaged in serious misconduct. This is a very serious undertaking as an employer can be liable for unfair dismissal if the grounds for termination are not based on conduct that amounted to this standard. The type of conduct that may come under this category include offences like theft, violence, fraud and drunkenness. Employers could encounter difficulties if they rely on allegations made by employees or customers, and did not observe the misconduct themselves. Here, an employer must take steps to investigate the situation before terminating his or her employment legally.

Rights of the Employee

An employer is not able to legally fire an employee in Australia where allegations of bullying, harassment or misconduct have been raised, without first investigating those complaints. To fire an employee without having substantial evidence that the accusations are true could result in an employee filing an unfair dismissal claim. Similarly, there are often cases where an employee has falsely accused colleagues of unfair treatment and this is later revealed during investigations, or often during their actions in court.

Dye v Commonwealth Securities Ltd [2012] FCA 242 is a prime example of an employee caught making false allegations. In this case, Vivienne Dye alleged that two senior officers of the Commonwealth Bank had sexually harassed her during her employment at the bank between 2005 and 2007. During the proceedings it was shown that her credibility left much to be desired and many of her claims were found to be unsubstantiated or simply untrue. The court ordered her to pay over $5 million in legal costs.

More recently, in Hunter v The Commonwealth, represented by the Department of Sustainability, Environment, Water Population and Communities [2013] FWC 7917, an employee alleged that his manager had engaged in bullying and threatening behaviour. These allegations came about after the employee’s performance review during which his employer told him that he ‘needed development.’ After investigating the allegations, the Department found that this employee, along with other colleagues, had made these accusations to try and get the manager fired. The employer subsequently terminated the employee. The court upheld the decision of the Department.

Key Takeaways

The most important takeaway for employers is to ensure they have thorough and reliable investigative processes in place to appropriately handle any claims of misconduct or harassment by an employee or about an employee. This will prevent any issues arising from failing to take appropriate action, or failing to use effective resources to get to the truth of the matter. If you are unsure of the appropriate steps to take to protect you and your business, let our employment lawyers know on 1300 544 755.

Bianca Reynolds

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