Employer obligations

when investigating complaints against staff

Investigations and suspension of employment – what are an employers’ obligations and duties in conducting workplace investigations and directing an employee not to attend for work, IEUA VicTas Branch Industrial Officer Kristen Wischer asks. Two recent decisions give guidance as to what should be considered by employers and what employees can expect.

Teachers are subject to increasing scrutiny of their conduct, particularly as a result of ever expanding regulation of the profession. There have been two recent cases that discuss in some detail the intersection of the common law, contractual law, implied duties and the application of policy in determining what is reasonable when an employer determines to stand down an employee and commence an investigation into alleged misconduct.

The first case is Avenia v Railway Transport Health Fund Ltd [2017] FCA 859 (4 August 2017) and the second is a leave application to the High Court in Govier v The Uniting Church of Australia Property Trust (Q) [2018] HCATrans 65 (13 April 2018).

In the case of Avenia, a number of employees made informal complaints against Dr Avenia, a dentist who headed a Brisbane dental practice. The complaints were of his unreasonable and bullying behaviour towards staff. The HR manager of the practice had a face to face conversation with Dr Avenia advising that there had been complaints against him and that his employment was suspended effective immediately. This was followed up with a letter, which indicated that an investigation would be carried out and subject to the investigation, termination of employment was a possible outcome. The letter asked that he attend an interview scheduled two days from the date of the letter.

No formal complaint

Dr Avenia sought legal advice, and a series of letters followed from his lawyers, seeking details of the allegations and more time to respond. The employer wrote back after the first letter, clarifying that no formal complaint had been made and that no formal investigation or disciplinary action had been taken. In addition, the letter set out the allegations the employer wished to discuss and advised that once a preliminary response had been received a further determination as to whether a formal investigation would be commenced would be made. Despite this clarification Dr Avenia, on legal advice, did not attend for the next interview, proposed in 14 days’ time, or indeed the next one after that. The employer then wrote a ‘show cause’ letter, citing his refusal to obey a lawful direction to attend an interview and other contractual matters as potential grounds for termination. Dr Avenia’s lawyers filed an application for an injunction to prevent termination of employment and alleging breach of contract. Justice Lee carried out a very extensive examination of the common law and what may be implied into an employment contract. With respect to suspension of employment he found:

there is no implied contractual duty for an employer to provide continuous work, rather there is a duty on both parties to co-operate to ensure both parties do all that is reasonably necessary to secure performance of the contract

suspension of employment is an option available to an employer where it is reasonable in the circumstances – when considering those circumstances – the employer can look at the contract, policies (such as a Code of Conduct), an enterprise agreement, legislative requirements (such as unfair dismissal laws) and the obligation of the employer to provide a safe workplace for all employees

provided the direction was reasonable, the employer has a right to suspend on full pay temporarily pending an investigation or fact finding

there is no right under the commonlaw to suspend without pay – the employer must either continue the employment relationship or move to summary dismissal

that ‘suspension of a qualified professional in a function which is as much a vocation as a job is not a neutral act – suspension inevitably casts a shadow over the employee’scompetence’, and

a decision to suspend must be finite, an indefinite suspension would be a breach of contract.

With respect to attending meetings, the decision confirmed that it is not reasonable to direct an employee to attend a meeting without a proper understanding of the true intention of the meeting. Once that clarity has been provided and reasonable notice has been given, the direction to attend will be reasonable.

In the case of Avenia, the initial request with two days’ notice and a lack of clarity as to the allegations and purpose of the meeting was considered unreasonable, and hence Dr Avenia’s refusal to attend reasonable. His subsequent refusals however, were considered on the facts unreasonable and hence a valid reason for termination of employment.

Harmful letter

In the High Court matter of Govier, the applicant, a disability worker in Queensland, had been the subject of physical abuse at work, resulting in hospitalisation and later development of PTSD. While in hospital the employer wrote to her requesting she attend an investigation interview the next day. The employer sent another letter again requesting Govier attend for an interview, and then as a result of her failure to attend, issued a show cause letter advising her employment would be terminated and negative findings against her would be made if no response was received. Ultimately, Govier’s employment was not terminated.

Govier alleged that the content and manner of the letters aggravated her psychiatric injury. She alleged the employer owed her a duty of care not to cause psychological harm while investigating the conduct and that the duty arose as part of the employer’s obligation to provide a safe system of work. In the first instance and on appeal, the Courts held there was no duty to avoid harm in the course of an investigation and decision making, albeit that it acknowledged the letters had negligently caused harm.

Leave not granted

The High Court tended to agree there was no implied duty, but importantly, did leave open the possibility that a contract of employment could create such a duty. In this case, in the absence of a contract being in evidence, the leave was not granted.

Recently, IEUA VicTas made an application to the Fair Work Commission on behalf of a member who had been suspended while an investigation was conducted into the allegations against him. At conciliation the Commissioner reminded the employer of its obligations when suspending an employee in line with the above cases. It was advised that notice of suspension should be in writing and state clearly the reason for suspension, the likely implications and duration of the suspension.

The recent cases make it clear that an employer’s obligation is to act reasonably when investigating allegations and when suspending an employee. Employers should:

ensure an employee is properly informed of the process

ensure the investigation is carried out by trained staff

give the employee details of allegations and adequate time to respond, and

be mindful of the risk of psychological harm.