Most Read Contributor in Australia, September 2016
A recent decision of the Fair Work Commission highlights how
important it is for employers to act promptly when inappropriate
workplace conduct is brought to the attention of management.
Moustafa Hassan v Australia and New Zealand Banking Group
Limited (2013) FWC 3848 (Hassan's
Case) involved an unfair dismissal application
arising from Mr Hassan's termination in July 2012 for alleged
misconduct. ANZ first notified Mr Hassan that a complaint had been
made against him in January 2012, which consisted of 8 alleged
instances of inappropriate workplace behaviour. After conducting a
lengthy investigation, ANZ concluded that all the allegations had
been substantiated. These relevantly included:
Writing "get stuffed" on an employee's leave
application and tearing it up in front of him;
Referring to team members by their ethnicity; and
Remarking on female colleagues' appearance and
Significantly, many of the allegations for which Mr Hassan was
dismissed had previously been brought to ANZ's attention in
2010 and 2011. An investigation was conducted into the allegation
about the destruction of the annual leave form, during which Mr
Hassan admitted to the conduct, describing it as a joke. No record
was kept of Mr Hassan's admission and no action was taken by
ANZ in respect of the incident. The allegations about Mr Hassan
commenting on female colleagues' appearance were also raised in
a bullying complaint made against Mr Hassan, but an investigation
found they could not be substantiated.
Mr Hassan argued that his dismissal was harsh, because ANZ had
prior knowledge of this conduct, but took no disciplinary action
against him, nor provided him with any training in appropriate
Deputy President Gooley ultimately found that Mr Hassan's
dismissal was not harsh, unjust or unreasonable and therefore not
unfair. However, she expressed significant concerns about ANZ's
failure to take action to correct Mr Hassan's behaviour when it
was first brought to management's attention, commenting:
"...the Respondent [ANZ], by taking no action
earlier, had failed to educate the Applicant [Mr Hassan]
in a practical way, about his obligations under the policies.
Its failure to intervene earlier contributed to the failure of the
Applicant to understand what acceptable workplace behaviour
The crucial consideration in the Deputy President's
conclusion that the dismissal was not unfair was Mr Hassan's
complete lack of remorse and refusal to take responsibility for his
actions. This was in contrast to 2 other employees found to have
breached ANZ's Code of Conduct during the course of the
investigation into Mr Hassan, both of whom acknowledged and
apologised for their conduct and undertook to correct their
behaviour in future. The Deputy President stated:
"Had the Applicant had any insight into the
inappropriate nature of his conduct, I would have considered the
Respondent's decision to terminate him in circumstances where
it had not intervened earlier to remedy inappropriate workplace
Lessons for employers
Hassan's Case highlights how even sophisticated
employers with dedicated human resources teams can be exposed to
legal action by failing to manage inappropriate workplace conduct
in a timely fashion. In order to limit exposure to possible legal
action, employers of all sizes should consider implementing the
following measures for managing workplace conduct:
Create and maintain a comprehensive Code of Conduct, addressing
issues such as sexual harassment and bullying and setting out a
procedure for the making and investigation of complaints;
Provide training to all staff about the terms of the
employer's Code of Conduct and appropriate workplace
When conducting an investigation into a workplace complaint,
ensure detailed notes are taken of any interviews conducted, for
Where complaints are substantiated, ensure appropriate
disciplinary action is taken (e.g. formal warning, additional
training, demotion, dismissal etc).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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