An employee has been awarded the maximum compensation payment of 26 weeks’ pay, after being unfairly dismissed for serious misconduct relating to an un-investigated allegation of physical assault made by the Human Resources Manager (‘the HRM’) of the business.
The employee, who was engaged as an IT Project Manager, was subjected to a “job performance review” prior to the alleged physical incident. This meeting had been delayed twice by the HRM due to her busy schedule, notwithstanding the meeting had been scheduled by the HRM. On both occasions, the IT Project Manager was left waiting for approximately four hours, behaviour Vice President Hatcher characterised as “arrogant and disrespectful”.
Following an incident where the employee found himself unable to log into his work computer system, he sent an email to a number of senior positions within the business, including the HRM in question, complaining of being subjected to “discrimination, victimisation and unethical bullying and pressure” by the HRM and another colleague.
Two days later the employee was issued two warning letters, one regarding performance and another for punctuality, as the employee had recently been late to collect some equipment from the HRM because he was responding to a request to assist with an IT enquiry from the billing department. Both warnings were drafted by the HRM. Vice President Hatcher found “the process of constructing and delivering two separate warning letters at the same time, instead of one letter, was entirely artificial and, I infer, intended to build up an adverse employment record for Mr Ramsey”.
The situation escalated when the employee refused to sign his performance improvement plan and the HRM responded with “Well you are refusing because you don’t want to do any work”. A conversation followed in which the HRM threatened to sack the employee, swore at him and then jumped back saying “Don’t touch me… I will call security to throw you out of the office”. Security escorted the employee from the building, where the employee called the police to “establish his innocence”. Evidence obtained from a transcript of the employee’s emergency call stated the “lady of the HR umm, came to my office here and she used the f-word and she accused me of touching her body and she run away”. The employee was subsequently mailed a termination letter which he received two days later stating “you placed your hand on [the HRM’s] shoulder and physically shoved her in anger, this constitutes violence in the workplace and police were called to the incident. As such we consider that your actions constitute serious misconduct warranting summary dismissal”.
Vice President Hatcher rejected the HRM’s evidence as lacking credibility, due to inconsistencies between her version of events and witnesses, including the omission within the termination letter that it had been the employee and not the HRM who had called the police following the incident. Vice President Hatcher further cited “[the employee’s] conduct in calling the police immediately after the incident was not consistent with him having engaged in the conduct alleged.” He concluded “it is difficult to imagine a more gross denial of procedural fairness” due to the absence of investigation prior to dismissal, the employee not being notified of the reason for his dismissal and consequently not given an opportunity to respond to the allegations.
The employee was awarded a compensation amount of $40,977.30, equivalent to 26 weeks’ pay.
This case highlights the importance of undergoing a comprehensive investigation. Internal investigations are important for ensuring reports of bullying, harassment, discrimination and serious misconduct are handled correctly. Investigations In the Workplace on 6th March 2017 will provide knowledge on what constitutes unlawful behaviours, the principles of an effective investigation and outline your role as an investigator.
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