Application For Reinstatement, Denied – How Excellent Complaint Management Gives Lessons For HR Teams In Councils

Our firm has recently acted for the Fraser Coast Regional Council (the Council) in relation to an application for reinstatement before the Queensland Industrial Relations Commission (QIRC).[1] Following our successful defence of the application for reinstatement, we continued to act for the Council in relation to an application for costs against the employee. We were ultimately successful in obtaining a cost order on behalf of the Council notwithstanding the difficulty in doing so given the nature of costs under the Industrial Relations Act 2016 (QLD) (IR Act). This article focuses on the substantive proceedings and the application for costs will be discussed in a follow up article.

Overview

The substantive matter highlights the exemplary approach the Council adopts in relation to the disciplinary process undertaken against employees, particularly in circumstances where the employee appears to be struggling with non-work related issues.

The matter also reflects a familiar scenario that may affect councils in Queensland – a long term employee engaging in (relatively) minor misconduct over a lengthy period of time which (when each instance of misconduct is considered individually) may be awkward to formally manage.

Initial steps taken by Council

Initially, the employee’s misconduct took the form of general complaints in relation to the employee’s behaviour towards colleagues and members of the public. Given the relatively minor nature of the complaints, the Council decided it would be best for the employee’s manager to hold informal discussions with the employee to ascertain the causes of the complaints. This was a good decision by the Council because in practical terms, the involvement of human resources personnel often result in defensiveness on the part of employees. Importantly, the employee’s concerns (primarily in relation to her workload) were noted by the manager for further investigation. The manager concluded the informal process by directing the employee (in writing) to Council’s Code of Conduct.

When the employee failed to improve their conduct, the Council maintained their patient approach. A subsequent informal meeting between the employee and her supervisor was arranged to allow the employee to raise any further concerns in relation to her work. The Council took into consideration the employee’s comments before directing the employee (in writing) to Council’s Code of Conduct as well as further clarifying Council’s expectations.

Two (2) things should be noted at this stage – no formal action had been taken by the Council and the process had been contained within the employee’s team to avoid unnecessary escalation. These factors provided ample opportunity for the employee to improve her conduct without requiring formal action to be taken.

After the Council continued to receive complaints about the employee’s conduct, it was determined that an escalation was required to reiterate the need for the employee to comply with Council’s Code of Conduct. This was done by way of a formal meeting (involving human resources personnel) where the employee was provided an opportunity to (verbally) respond to allegations made against her as well as raise any grievances she had. File notes were kept on the decision-making process and it was determined appropriate to issue the employee with a verbal warning as well as simultaneously addressing the concerns raised by the employee. 

Further steps taken by Council

The verbal warning failed to stem the employee’s misconduct after the Council received allegations the employee used inappropriate language in the presence of a councillor. The disciplinary process continued and the employee was required to show cause (by providing a response in writing) as to why the Council should not consider the allegations to be instances of misconduct. The employee provided a written response setting out her own allegations of bullying against her colleagues. The Council chose to suspend the show cause process until an investigation was conducted into the employee’s allegations in the interests of procedural fairness. Notwithstanding the suspension of the show cause process, the Council continued to receive complaints from other employees.

The Council’s next step was twofold – a written response was provided to the employee setting out the results of the investigation into her allegations and the show cause letter was amended to include the further allegations that had arisen. The employee was provided a further opportunity to respond. After due consideration of the employee’s written response, a decision was made to issue a written warning. This was an appropriate escalation of disciplinary action from the previous verbal warning and consistent with the Council’s policies.

Despite the written warning, further complaints were received by Council against the employee. The Council commenced a further show cause process setting out the additional allegations and provided the employee with paid leave (with no deduction to her annual leave) to allow her to respond in writing. Whilst the employee complied with this direction, she subsequently commenced a period of personal leave and made a Workcover application alleging the management action of Council had resulted in psychiatric injury. The Council decided to await the finalisation of the Workcover application prior to finalising the disciplinary process to avoid injuring the employee.

When the Council was informed the employee’s Workcover application had been rejected (on the basis the Council’s actions constituted reasonable management action), the Council contacted the employee to finalise the disciplinary process that had been put on hold. Initially, the Council attempted to seek an opinion from the employee’s treating practitioner to determine her fitness to work. Whilst the Council was entitled to direct the employee to attend an Independent Medical Examination (IME) given the employee’s prolonged period of absence, it recognised the employee was more familiar and comfortable in dealing with her own treating practitioner. 

After attempts at obtaining medical advice from the employee’s treating practitioner had stalled (the Council had waited one (1) month), the Council directed the employee to attend an IME. This was to ensure the employee had the requisite capacity to participate in the disciplinary process. Following receipt of medical advice, the Council informed the employee (by way of written correspondence) that her employment with Council would be terminated on the basis of misconduct.

As a result of the Council’s exemplary approach to the disciplinary process, the QIRC refused the employee’s application for reinstatement on the basis that:

1. The employee had been provided procedural fairness and natural justice at all times;
2. The allegations were reasonably open to be substantiated (following investigation and seeking responses from the employee); and
3. The disciplinary action (termination of employment) was warranted given the employee’s conduct and behaviour over an extensive period of time.

Tips for Councils

1. TIP 1 – Exercise discretion in conducting a disciplinary process 

Councils should avoid the unnecessary escalation of disciplinary action by exercising discretion. The involvement of human resource personnel early in the disciplinary process may well result in defensive attitudes from employees and hinder any collaborative attempt at resolving conduct issues. It may even result in the employee engaging legal or union representation to deal with actions taken by a council which (although employees are entitled to do so) may increase the time and resources required in conducting a disciplinary process. If disciplinary matters can be resolved expediently with expectations being clearly communicated and understood, this will be in the best interests of a council. As such, we recommend HR train and educate managers on performance management and in some respects identifying legal risk and liability for managers.

• TIP 2 – Address complaints made by employees in a disciplinary process

It is important for decision makers of Council to remain impartial in any disciplinary process by investigating any complaints raised by employees involved in a disciplinary process (unless they are clearly unfounded). It is easy to fall into the trap that employees are making complaints to frustrate or stall the process. In the above matter, if the Council had neglected to do so the employee may well have made a general protections application in lieu of an application for reinstatement.

This is because employees have a workplace right to make complaints or inquiries under s 284(1)(c) of the IR Act and any adverse action (such as disciplinary action, dismissal or demotion) may expose a council to a general protections application. If a council is unable to demonstrate it has effectively dealt with an employee’s complaint or inquiry, it may have difficulty in rebutting the presumption (that adverse action was taken due to the exercise of a workplace right) that exists under s 306(2) of the IR Act.

• TIP 3 – Confirm oral communications in writing

Oral communications with employees should always be subsequently confirmed in writing to ensure it is unambiguous that an employee’s attention has been drawn to a particular policy and the need for compliance with the policy. It may also clarify the expectations of a council to ensure the employee has a full understanding of how to comply. Doing so will avoid an employee disputing the fact they were unaware they had not been warned or counselled on non-compliance. It will also assist the Council in rebutting the presumption of adverse action if an employee commences a general protections application (by providing written evidence of conduct issues).

• TIP 4 – Confirming an employee’s fitness to participate in a disciplinary process

In circumstances where an employee has taken a prolonged period of personal leave or has been on Workcover, it is important to confirm an employee’s fitness to participate in a disciplinary process to avoid aggravation of existing injuries (if any). Councils should be mindful they are unable to make conclusions on medical issues without formal medical qualifications.

If you are in HR or compliance employed by a council and require expert assistance with employment law or industrial relations matters, NB Lawyers – Lawyers for Employers  can offer an obligation free consultation to discuss how we can assist you with any concerns you may have. We understand there are particular considerations for councils and we are more than happy to assist councils with their queries.

Written By

Jonathan Mamaril 

Director 

NB Lawyers – Lawyers for Employers 

[email protected]  

+61 (07) 3876 5111

ASSISTED BY

Dan Chen

Lawyer

NB Lawyers – Lawyers for Employers

[email protected] 

+61 (07) 3876 5111

About the Authors

Jonathan Mamaril  leads a team of handpicked experts in the areas of employment law and commercial law who focus on educating clients to avoid headaches, provide advice on issues before they fester and when action needs to be taken and there is a problem mitigate risk and liability.

Dan Chen is a lawyer at NB Lawyers, the lawyers for employers, and specialises in employment law. Dan is passionate about assisting business owners, small and large understand their obligations under Australia’s complex workplace relations system.

[1] Alderton v Fraser Coast Regional Council [2019] QIRC 137.