Tick and flick: When going through the motions is not enough
6 mins reading time
Two recent unfair dismissal cases have highlighted the dangers of ‘tick and flick’ approaches to complying with employment obligations.
In the first case, an employee was found to have been unfairly dismissed, even though there was a valid reason for the termination of his employment. A crucial factor was the finding that the employee had not been sufficiently informed of the workplace policies the employer relied upon to dismiss him.
In the second case, an employer was found not to have a valid reason for dismissal because it relied on the findings of a procedurally flawed internal investigation.
These cases and their findings are expanded upon below.
The importance of policy implementation
In the case of Ramlan Abdul Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 2868 (16 October 2024),
Mr Samad worked as a truck driver for his employer for 20 years and had an unblemished employment record, before being terminated for serious misconduct.
The termination followed Mr Samad making remarks to another employee, Mr Rahman, that he knew “how to suck the boss”, while making lude hand gestures towards him. Mr Rahman repeatedly asked Mr Samad to stop this behaviour, however Mr Samad did not and then made comments to other employees to not joke with Mr Rahman because he would “report it to management”.
The employer investigated Mr Samad’s conduct and determined that he had engaged in behaviour that was in breach of several of the employer’s policies and amounted to serious misconduct. Accordingly, Mr Samad was dismissed.
The Fair Work Commission held that there was a valid reason for the termination of Mr Samad’s employment but that he was unfairly dismissed by his employer. One of the reasons the dismissal was considered unfair was due to the employer’s process for implementing the policies Mr Samad had breached. Mr Samad argued that it was unreasonable to require him to abide by policies he was unaware of, even though they had been presented at a 30-minute toolbox meeting and copies were left for employees to take.
The onus lies with the employer to go beyond a ‘tick and flick’
The Commission found that 30-minutes is not an adequate timeframe conducive to explaining behavioural expectations to employees, especially in an environment where there may have been language barriers. There was also no guarantee that any employees took a copy of the policy that was provided. The Commission described the employer’s process as having ‘all of the hallmarks of a “tick and flick” exercise designed to demonstrate compliance’.
The Commission stated that had Mr Samad been properly trained in workplace behaviours via culturally appropriate and interactive training, he may have changed his behaviour. Not doing this, added an element of injustice to the termination.
Importance of thorough investigations
In the case of Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd [2024] FWC 2784 (7 October 2024),
Ms Panchal had worked for her employer since 2019 in a team leader position when she received a letter from her employer stating that allegations of bullying and discrimination had been made against her. The letter stated that she would be stood down, with pay, pending an investigation.
Ms Panchal asked for details of the allegations, which were then provided to her in a letter. There were 8 allegations in total and Ms Panchal was invited to respond to them in writing.
Ms Panchal provided a written response at 11:40am on 6 June 2024, denying all of the allegations. At 4.00pm that same day, Ms Panchal received a response from her employer that it had considered the information and concluded that all of the allegations were substantiated. The letter stated that the company was proposing to terminate her employment and invited her to respond by 4.00pm the next day. Ms Panchal requested an extension of time to respond, but by 4:30pm the next day her employment had been terminated with immediate effect.
Ms Panchal argued that the allegations were made up to remove her from the company and that the decision to terminate her was really made before she had provided her response to the allegations.
Multiple allegations do not lower the standard of proof
The Commission agreed that there was no valid reason for Ms Panchal’s dismissal and that she had been unfairly dismissed. The Commission was not satisfied that Ms Panchal engaged in bullying or discriminatory behaviour. Rather, the evidence that the company relied on in the investigation was not compelling and was “scanty, conclusory, and largely second hand, that is to say, hearsay”. It found that the employer took the number of allegations against Ms Panchal as evidence of her guilt and did not consider her responses.
The Commission stated that the appropriate response to allegations of discrimination is “to investigate the matter and reach a reasoned conclusion … The fact that there may be multiple allegations does not lower the standard of proof.”
Takeaways from unfair dismissal cases
These unfair dismissal cases highlight the importance of not just going through the motions when it comes to compliance with industrial legislation. Introducing and maintaining up-to-date policies is an important first step, but adequate training (including refresher training) is also necessary to discharge the obligations owed by an employer.
Similarly, workplace investigations must afford genuine procedural fairness to participants, balancing the rights of complainants and respondents. This can be very difficult, especially where serious allegations are made without the benefit of “objective” or “hard” evidence.
The Employment team at Macpherson Kelley can assist to achieve compliance, by developing and updating policies that are tailored to your business, and providing advice, training and other implementation measures to ensure health and safety obligations are met. We are also able to assist in undertaking investigations that can be relied on with confidence.
The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.
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Tick and flick: When going through the motions is not enough
Two recent unfair dismissal cases have highlighted the dangers of ‘tick and flick’ approaches to complying with employment obligations.
In the first case, an employee was found to have been unfairly dismissed, even though there was a valid reason for the termination of his employment. A crucial factor was the finding that the employee had not been sufficiently informed of the workplace policies the employer relied upon to dismiss him.
In the second case, an employer was found not to have a valid reason for dismissal because it relied on the findings of a procedurally flawed internal investigation.
These cases and their findings are expanded upon below.
The importance of policy implementation
In the case of Ramlan Abdul Samad v Phosphate Resources Ltd T/A Christmas Island Phosphates [2024] FWC 2868 (16 October 2024),
Mr Samad worked as a truck driver for his employer for 20 years and had an unblemished employment record, before being terminated for serious misconduct.
The termination followed Mr Samad making remarks to another employee, Mr Rahman, that he knew “how to suck the boss”, while making lude hand gestures towards him. Mr Rahman repeatedly asked Mr Samad to stop this behaviour, however Mr Samad did not and then made comments to other employees to not joke with Mr Rahman because he would “report it to management”.
The employer investigated Mr Samad’s conduct and determined that he had engaged in behaviour that was in breach of several of the employer’s policies and amounted to serious misconduct. Accordingly, Mr Samad was dismissed.
The Fair Work Commission held that there was a valid reason for the termination of Mr Samad’s employment but that he was unfairly dismissed by his employer. One of the reasons the dismissal was considered unfair was due to the employer’s process for implementing the policies Mr Samad had breached. Mr Samad argued that it was unreasonable to require him to abide by policies he was unaware of, even though they had been presented at a 30-minute toolbox meeting and copies were left for employees to take.
The onus lies with the employer to go beyond a ‘tick and flick’
The Commission found that 30-minutes is not an adequate timeframe conducive to explaining behavioural expectations to employees, especially in an environment where there may have been language barriers. There was also no guarantee that any employees took a copy of the policy that was provided. The Commission described the employer’s process as having ‘all of the hallmarks of a “tick and flick” exercise designed to demonstrate compliance’.
The Commission stated that had Mr Samad been properly trained in workplace behaviours via culturally appropriate and interactive training, he may have changed his behaviour. Not doing this, added an element of injustice to the termination.
Importance of thorough investigations
In the case of Vanitaben Panchal v Bulla Mushrooms (Aust) Pty Ltd [2024] FWC 2784 (7 October 2024),
Ms Panchal had worked for her employer since 2019 in a team leader position when she received a letter from her employer stating that allegations of bullying and discrimination had been made against her. The letter stated that she would be stood down, with pay, pending an investigation.
Ms Panchal asked for details of the allegations, which were then provided to her in a letter. There were 8 allegations in total and Ms Panchal was invited to respond to them in writing.
Ms Panchal provided a written response at 11:40am on 6 June 2024, denying all of the allegations. At 4.00pm that same day, Ms Panchal received a response from her employer that it had considered the information and concluded that all of the allegations were substantiated. The letter stated that the company was proposing to terminate her employment and invited her to respond by 4.00pm the next day. Ms Panchal requested an extension of time to respond, but by 4:30pm the next day her employment had been terminated with immediate effect.
Ms Panchal argued that the allegations were made up to remove her from the company and that the decision to terminate her was really made before she had provided her response to the allegations.
Multiple allegations do not lower the standard of proof
The Commission agreed that there was no valid reason for Ms Panchal’s dismissal and that she had been unfairly dismissed. The Commission was not satisfied that Ms Panchal engaged in bullying or discriminatory behaviour. Rather, the evidence that the company relied on in the investigation was not compelling and was “scanty, conclusory, and largely second hand, that is to say, hearsay”. It found that the employer took the number of allegations against Ms Panchal as evidence of her guilt and did not consider her responses.
The Commission stated that the appropriate response to allegations of discrimination is “to investigate the matter and reach a reasoned conclusion … The fact that there may be multiple allegations does not lower the standard of proof.”
Takeaways from unfair dismissal cases
These unfair dismissal cases highlight the importance of not just going through the motions when it comes to compliance with industrial legislation. Introducing and maintaining up-to-date policies is an important first step, but adequate training (including refresher training) is also necessary to discharge the obligations owed by an employer.
Similarly, workplace investigations must afford genuine procedural fairness to participants, balancing the rights of complainants and respondents. This can be very difficult, especially where serious allegations are made without the benefit of “objective” or “hard” evidence.
The Employment team at Macpherson Kelley can assist to achieve compliance, by developing and updating policies that are tailored to your business, and providing advice, training and other implementation measures to ensure health and safety obligations are met. We are also able to assist in undertaking investigations that can be relied on with confidence.