Deputy President reminds parties of the privilege against self -incrimination at UFD hearing. Content warning and advice included below.
Note: this case review covers an FWC Unfair Dismissal hearing, at which a range of allegations were aired including intimate partner violence and abuse, workplace violence and abuse, sexual assault, and drug use. It is not the role of the Commission to prosecute these allegations, nor to find if the allegations are proved, nor will this case review speculate on that topic. The Deputy President’s task in this matter is to establish if the termination was “unreasonable [or] unjust, or harsh”, and if so found, order a remedy.
In a demonstration of thoughtful jurisprudence, at the commencement of the hearing the Deputy President reminded all parties that a general privilege against self-incrimination operates in Australia, which means testimony and evidence aired in the hearing may be used as evidence in other matters.
I stress, any reference to such acts in this case review are allegations aired in evidence, in open, at the FWC, and should not be considered to indicate any guilt or innocence of any party.
Additionally, the case won’t be referenced here, and identities of the parties are removed. The Respondent in this case is a not-for-profit organisation that works in very difficult circumstances to provide services to a client group experiencing severe difficulties. The author has deep respect and admiration for the organisation and the work they do, and doesn’t wish to draw to them any attention that would distract from their critical work.
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The Applicant was a long-term employee working in middle-management of a community services NFP, and had commenced a relationship with a female staff member at the organisation. The female staff member was further down the organisational chart but was not in the Applicant’s reporting line. Employees at this organisation had signed their employment contracts agreeing to work and act within the organisation’s Code of Conduct, which appears to be an entirely orthodox document, common in most Australian organisations.
According to statements given in evidence, it is during this relationship, (which continued for at least seven months but may have been as long as 18 months) that the female staff member advised her manager and other colleagues that the Applicant had been violent with her, striking her, throwing an object at her, and shouting at her while tipping over furniture in her office.
The manager and some colleagues gave evidence that they saw bruises on her, which she attributed to the Applicant. They gave evidence of conversations they had with the female staff member over a period of months where she told them that she had been assaulted by the Applicant, along with other upsetting details.
At the FWC hearing, the Applicant denied being violent towards the female staff member, advancing that from here he had received continual emotional abuse, betrayal and gas-lighting. He conceded that he had sent abusive and "ugly" messages to her. He claimed they were abusive to each other, claiming that she was more abusive than was he.
During his employment, the Applicant had received a written warning for not following an important procedure, and the organisation had been noting that other areas of his performance weren’t meeting expectations. It was also given in evidence that one colleague formed the opinion that on one occasion the Applicant appeared to be affected by drugs while on duty.
The organisation sought advice from an external body specialising in domestic violence response on how best to support the female staff member.
In a tragic twist, in the short period between when the Respondent organisation made the decision to terminate the Applicant, and the date of the actual termination meeting, the female staff member suffered a serious health event requiring hospitalisation and long-term rehabilitation which prevented her from giving evidence to the FWC.
The Respondent terminated the Applicant, citing the following reasons: serious breaches of the Respondent’s code of conduct, and misusing the Respondent’s assets to harass and abuse the female staff member. At the termination meeting, without the Respondent’s knowledge, the Applicant allegedly wiped his company mobile phone with a factory reset before handing it over.
After the termination, the Respondent discovered on the female staff member’s work phone several message exchanges between the Applicant and female staff member from throughout their relationship, ranging from innocuous to extremely offensive, abusive, and threatening.
Further examination of electronic devices revealed the Applicant had been charged with breaching a Family Violence Restraining Order approximately 18 months earlier, for which he received a spent conviction. He did not disclose this to the Respondent.
While it was not specifically required in the Respondent’s Code of Conduct or policies and procedures for employees to advise them of criminal charges, the Code of Conduct did require staff to refrain from anything where personal or professional conduct is likely to compromise their role, or the organisation’s operations and reputation. The Deputy President refers to this in their findings.
The Applicant made an application to remedy an unfair dismissal, and the matter was heard.
On cross examination, the Applicant conceded the veracity of the offensive and threatening messages between himself and the female staff member. He stated that an element of their relationship was mutual abuse. He denied committing acts of violence against her.
The Deputy President cited the following authorities inter alia in delivering their decision:
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The Deputy President remarked that they were “unconvinced that the alleged domestic violence, as described in this part of the decision, proves to be a valid reason for dismissal for the aforementioned reasons.” (Emphasis in the original).
Had the female staff member been able to provide first-person evidence-in-chief or be cross examined on her claims, the decision to terminate, and/or, the progress of the FWC hearing may have been expedited and clear.
The Deputy President also identified procedural issues with the termination meeting, which in other circumstances, may have meant the dismissal was unreasonable.
However, amongst all the allegations, the Deputy President placed weight on the threats sent by the Applicant on work-supplied devices. It’s worth noting that the Applicant conceded he was author of those messages, and the messages were entered into evidence prior to the hearing.
The Deputy President also mentions the Applicant, by resetting his mobile phone, removed evidence may have proved relevant to his dismissal and may have prejudiced the Respondent.
The Deputy President reiterated that the Applicant admitted authorship of messages retrieved from the Applicant’s devices and the female staff member’s devices, and that he conceded the messages were threatening and “ugly”. The Applicant had attempted at least once to “walk back” the threats with a follow up message that he was “joking”.
The Deputy President found that elements of the Applicant’s actions constituted serious misconduct and dismissed the application for an unfair dismissal remedy.
For HR and ER practitioners, Managers and Executives of organisations, both not for profit and for profit, there is a lot to learn from this case.
I stress, none of this case review is a criticism of the organisation, its management, or staff. This was a complex, sensitive, drawn-out matter with a tragic health event for the female staff member. I can’t recall another like it.
There is little to no chance that the Management and HR team would have experienced this before or even had cause to consider this chain of events.
This experience would have been horrible for all involved, and I hope all affected parties have practiced some self-care and made use of EAPs and other support networks. Re-enlivening the events giving evidence to the FWC would have been very difficult given the health condition of the female staff member.
My suggested takeaways are:
Firstly, it is imperative to act immediately if any staff member in an organisation becomes aware of allegations such as those raised by the female staff member. We all understand how uncomfortable this is, and many organisations have an anonymous tipoff service to reduce reluctance to do this. A general duty of care applies here - even though it was a personal relationship, it was deeply enmeshed with work. Once an employee or officer of an organisation learns of allegations of violence between two colleagues, even if outside work, it is reasonable to investigate and take steps to minimise the likelihood that the violence occurs or re-occurs, and to maintain the workplace free from psychosocial risk.
Secondly, where such matters are raised, a written statement is critical. Again, we all understand how uncomfortable it is to have to convince someone who is distressed and upset that they should “formalise” a personal trauma, however written signed statements will always be given probative precedence over hearsay in any Australian jurisdiction. Recording a conversation on your phone is also an option, just make sure the recording includes all parties giving informed consent.
Thirdly, all organisations have the option to suspend staff to enable an investigation to take place, and to take custody of their devices and remove system access. This has the effect of “freezing” any evidence (on devices or in documents) and reduces the actual or perceived imminent threat of retribution towards the alleged victim(s) or witnesses. This enables organisations to commence a formal investigation either with internal resources or engaging an external investigator or ER practitioner.
Fourthly, where sufficiently related to the inherent requirement of the job, it is acceptable to impose a positive obligation on staff to advise an employer of new legal matters such as arrests, charges, and convictions.
Fifthly, a termination can lawfully take place when there is an irrecoverable loss of trust and confidence by the employer in the employee. There doesn’t necessarily have to be a specific clause in a Code or Policy. However, this cause for termination is less clear-cut than a straightforward violation of a Code or Policy, and each decision to terminate due to irrecoverable loss of trust and confidence must turn on its own facts. Actions repugnant to the employment contract, or actions which repudiate the mutual duties of both employees and employers can lawfully be used for a termination. However, never let the fact that there is not a specific breach of a specific policy get in the way of considering termination if the circumstances warrant it. This is certainly a situation where specialist advice is advisable.
Finally, a message to all NFPs in my home state of WA. If you find yourself in a situation where you’re not sure how to proceed with a matter such as the one described here, and you’re concerned about the cost of advice or investigators, please message me on LinkedIn, and I’ll do all I can to help, pro bono. If it is beyond me, I’ll do all I can to source a solicitor who will take the case on pro bono.?