Obstructing the investigation

The Authority found that sending the initial email instruction, and taking more than 2 weeks to retract it, was a breach of s134A.  The standard is that there was potential for the instruction to obstruct the investigation, whether it actually did or not.

Further, the Authority found that the duty of good faith continues beyond termination, at least until the Authority’s investigation is complete. This duty is implied as a part of every employment relationship by section 4 of the Act. By sending the email, Dr Borren was found to have attempted to “disable any opposition to him in response…to the personal grievance” and that this was a breach of the duty of good faith.

The Authority’s approach reflects their view that an investigation is to be a fact gathering exercise to be greatly assisted by parties having access to witnesses and evidence. Having made the above findings the Authority did not make an award but referred the parties to a further mediation to decide on quantum. They did reference an analogous case where the penalty awarded was $20,000.

Avoiding the same mistakes

This entire chain of events stemmed from a procedural error in what could have been a situation of straightforward dismissal for serious misconduct. This is far from novel and serves as yet another reminder to employers that, regardless of the actions of an employee, the correct procedure must be followed in any disciplinary action for misconduct.

If a claim is made against an employer in the Authority, the employer must carefully manage its response to any requests for information and how it deals with any potential witnesses (including current employees). The duty not to obstruct the investigation coupled with the ongoing duty of good faith may require specific steps be taken or systems put in place to avoid an employer finding itself deemed obstructive.

If you are an employer or employee currently involved in a disciplinary situation for misconduct in employment, we can provide you with assistance to ensure that the correct procedures are followed.