Misconduct in the public eye

By Fay Calderone

April 12, 2018

Incident Investigation Report

Responding the wrong way to employee misconduct can lead to long running legal proceedings. Short-cutting procedural fairness won’t make the damage go away any faster, writes Fay Calderone.

The media, both mainstream and on social platforms, are regularly flooded with news, opinion and commentary about high profile harassment cases, tales of corruption, allegations of employee misconduct and other attention-grabbing workplace issues. The larger and more established the organisation or business involved, the more hype the scandal generates, with the greatest levels of interest reserved for the public sector.

There was a time when the boundaries between work and home were very clear. These boundaries have now blurred, indiscretions are highly visible and scrutiny by the court of public opinion via online platforms and social media has reached new heights. People have nowhere to hide.

An employee’s out of work conduct that, viewed objectively, is likely to cause serious damage to the employment relationship, damage the employer’s interests or is otherwise incompatible with the employee’s duties may amount to serious misconduct justifying summary termination. In the modern world of work, this much easier for an employer to establish, particularly when issues play out so publicly.

In the public service arena, the Australian Public Service Code of Conduct, by section 13 of the Public Service Act 1999, requires employees to “behave honestly and with integrity” and “at all times behave in a way that upholds the APS Values and Employment Principles, and the integrity and good reputation of the employee’s Agency and the APS”.  The APS Values are to be “impartial, committed to service, accountable, respectful and ethical” and the Employment Principles include that the APS “makes fair employment decisions with a fair system of review”.

In APS, these three statements enhance the necessary awareness by employees of their activities both within and outside the workplace and enhance the need for rigorous but fair enforcement by the relevant employer bodies when public servants have overstepped.

Social media is often the cause of problems and there is an increasing volume of case law relating to issues which arise relating to inappropriate posts, messages to colleagues, sharing, liking and other social media activities. For this reason the APS published a guide for its employees last year, Making Public Comment on Social Media. The difficulty for public servants using social media is the inherent difficulty of distinguishing between comments made officially and those made in a personal capacity. As public servants are required to uphold the public service’s values and reputation, there is the merest of grey lines delineating these two categories and all APS employees are well advised to read and adhere to the published guidance in this regard.

However, employers are placed in a difficult position, with public pressure to act often applied before an employer has even had an opportunity to conduct an investigation into alleged misconduct.  Employers must uphold procedural fairness and protect the health, safety and welfare of their employees (who may be distressed by public scrutiny and online trolling), whilst simultaneously addressing the media and convincing the public that they will not tolerate unacceptable conduct.

Against the risk of public outrage, or fanning the flames of that outrage if a matter is not dealt with in a manner which public opinion deems to be sufficient, organisations are advised to have processes and procedures in place, and that senior individuals are fully cognisant of such procedures, to ensure they can swiftly address conduct issues as and when they arise.

In the event of an allegation against an employee, appropriate procedures should include the following:

  • Adherence to procedural requirements which may be contained within disciplinary policies and procedures, employment contracts, awards and enterprise agreements;
  • Considerations of whether the particular employee should be suspended from their role or post, pending the outcome of the investigation. This may be necessary if the issue or allegation compromises their ability to work during an investigation, or there are other work health and safety or reputational issues;
  • If appropriate, offering access to employee assistance programs and/ or other urgent counselling and support services to support the health, safety and welfare of not only any complainants but also the accused employee; and
  • Ensuring that a decision is not taken until a full investigation has taken place and the employee concerned has had the opportunity to respond to any allegations and state their case.

Whilst this process is taking place the media needs to be managed and as a general principal, less is more. The reality is the media cycle will likely run its course regardless of what an employer says or does. However, lack of proper procedure can result in long running legal proceedings if an employee then brings a claim for unfair dismissal or alleges other breaches by their employer, particularly given the onerous requirements of public sector employment law.

Fay Calderone is an Employment Law & Workplace Relations Partner at Hall & Wilcox. She has served as Deputy Chair of Sport NSW and has been recognised by the NAB Women’s Agenda Leadership Awards; the Lawyers Weekly Partner of the Year Awards & Women in Law Awards; NSW Women Lawyer’s Association and our sister publication Smart Company.

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