22 Nov 2012
How to manage a complex employment disciplinary procedure in an enterprise agreement
by Stuart Pill, Dr Graham Smith
Although complex disciplinary processes in an enterprise agreement can be difficult to navigate, an employer has some flexibility in applying its procedures.
Enterprise agreements can often contain highly prescriptive and complex disciplinary processes which are difficult for employers to navigate.
A recent decision of the Full Federal Court has some useful lessons for employers with similar procedures – especially those that refer disciplinary matters to a third party investigator or investigation committee (Soliman v University of Technology, Sydney  FCAFC).
The alleged misconduct in Soliman
In Soliman, a university received an anonymous email complaint from a student, alleging a lecturer had provided answers to specific exam questions during a revision lecture. The email contained scans of the student's lecture notes that recorded the answers. Those answers matched the questions in the subsequent exam.
In accordance with the university's enterprise agreement:
a "Misconduct Investigation Committee" was established to investigate and conclude whether employment misconduct had been committed; and
the University's Vice Chancellor was responsible for considering the findings and deciding what disciplinary action should be imposed.
The Vice Chancellor decided that he should demote the employee. This triggered a variety of challenges by Soliman that have been pursued through the courts.
In the latest Soliman case, the Full Federal Court was asked to review Fair Work Australia's (FWA) finding that the demotion was lawful.
What was the most recent Full Federal Court asked to decide?
The employee contested FWA's finding on three main grounds:
first, that the anonymous complaint email was not valid evidence;
second, that there was no misconduct; and
third, and if there was misconduct, that the demotion was disproportionate.
The Full Federal Court rejected the first two arguments, but remitted the matter back to FWA to consider whether the demotion was disproportionate.
The anonymous complaint email could be used as evidence
The employee argued that the complaint email was not valid evidence as it was anonymous and its veracity could not be tested. The Full Federal Court disagreed and concluded that:
The Court considered that the anonymity of the email was relevant to the issue of how much reliance should be placed upon the email when drawing conclusions. Fatal to the employee's argument was that he did not dispute the contents of the email itself. Depending on other relevant evidence and the exact circumstances, the email could have been given less evidentiary weight if he had contested its contents.
The employee's actions amounted to misconduct
The employee did not contest the email's contents because he believed that he did not commit misconduct. He pointed to the fact that the university had no relevant policy or procedure that required him to conduct examination procedures differently.
The Court concluded that the legal meaning of misconduct should not be confined in this way. Rather it is an open question. By establishing a Misconduct Investigation Committee to establish whether misconduct was committed, the university was lawfully relying on that Committee to decide that question. For the Court, the legal meaning of 'misconduct' was to be informed by those with knowledge of the standards to be maintained by university lecturers - not confined to conduct which has been the subject of specific rules, directions or guidelines.
FWA failed to give reasons for concluding that the demotion was proportionate
Nonetheless, the appeal succeeded on a procedural ground. The Court agreed with the employee's argument that FWA failed to consider whether the demotion was disproportionate. This did not mean that the Court decided that the demotion was disproportionate - rather, it meant that the matter had to be remitted back to FWA for reconsideration.
Lessons for employers from the Soliman litigation
The litigation history in Soliman provides a number of lessons from various perspectives. Overall, it is encouraging that a formal and legalistic approach to disciplinary procedures has consistently been rejected. Previous court and tribunal decisions have made some important findings in this direction, including that:
an investigation committee does not need to be unanimous - an employer can act upon a majority's findings;
a decision-maker (such as the university's Vice Chancellor) does not decide the outcome in a vacuum - they are not confined to an investigation report (or the employee's submissions in response) and are entitled to draw upon their own experience;
the investigation was not invalid because the Misconduct Investigation Committee failed to convene and conclude its procedures within the stipulated times; this was because the university's enterprise agreement had a helpful clause stipulating that the process was to be completed as "expeditiously as possible consistent with the need for fairness".
The Soliman cases confirm that an employer has some flexibility in applying a disciplinary process where things might come undone – for example, when an investigation report is inconclusive or where an employment policy does not quite fit the situation at hand.
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