Failure to investigate makes fast track dismissal unfair
It can be tempting for employers to fast track a dismissal when they perceive a threat to their business through an unauthorised disclosure of confidential information and intellectual property. A recent ruling of the Fair Work Commission warns against a knee jerk reaction to such misconduct and highlights the importance of a thorough investigation to ensure a procedurally fair dismissal process.
CKI People Pty Ltd dismissed an HR Manager after discovering she had copied confidential business information including client’s personal details and other intellectual property to an external hard drive. The company feared the HR Manager was using the information to start her own business and reported the incident to Police.
While Commissioner Hampton accepted the combination of events and circumstances was grounds for “suspicion” that the employee intended to misuse the information, he wasn't satisfied that CKI had a sufficient basis to draw that conclusion at the time of dismissal.
The fast track dismissal involved a very limited investigation, without an opportunity for the employee to address the allegations against her or respond to some of the reasons for dismissal.
While the Commission accepted that there was a valid reason, the dismissal was unfair on procedural grounds.
Tips for Employers
Be mindful that mere suspicion of serious misconduct does not form a sufficient basis for immediate dismissal.
Act quickly to secure confidential information and intellectual property where there is a suspected breach.Such action might include: restricting access to computers; and requiring the hand-over of other devices.
Ensure that employment arrangements permit you to stand down an employee and give an appropriate direction, such as not to contact clients and customers. These measures will enable an investigation to be conducted without ongoing risk to the business.
Support internal decision makers by appointing an independent workplace investigator to conduct the investigation when there is insufficient internal capacity to do so or the investigation involves senior personnel.
