Next Investors logo grey

Listed companies face unfair dismissal claims following Banking Royal Commission

Published 18-APR-2019 15:03 P.M.

|

4 minute read

Hey! Looks like you have stumbled on the section of our website where we have archived articles from our old business model.

In 2019 the original founding team returned to run Next Investors, we changed our business model to only write about stocks we carefully research and are invested in for the long term.

The below articles were written under our previous business model. We have kept these articles online here for your reference.

Our new mission is to build a high performing ASX micro cap investment portfolio and share our research, analysis and investment strategy with our readers.


Click Here to View Latest Articles

With the historic royal commission into banking recently wrapping up, some of Australia’s biggest listed companies have seen a spate of unfair dismissal rulings levelled against them.

The significant increase in unfair dismissal claims in the industry is largely due to the Australian Banking Association’s new ‘conduct background check’ protocol, which requires the employer to share the reasons why an employee ended his or her previous employment.

According to commercial law and industrial relations experts Bennett & Philp, companies can never fully eliminate the risk of an unfair dismissal claim following the termination of an employee. However, carrying out a correct ‘show cause’ procedure will ensure that business owners minimise the risk of successful litigation.

“Once an employer learns of serious misconduct behavior, you need to take swift and decisive action, raise any allegations to the employee, allow the employee to respond to the allegations and then make a decision if the employment relationship can continue,” says Bennett & Philp employment expert, Lachlan Thorburn.

“Whether it’s a listed company in the tech industry or a fintech start-up, examples of serious misconduct include theft, dishonesty, IP breach, sexual harassment, bullying, discrimination and breaches of workplace health and safety.

“If the employee’s conduct falls into one of these categories, it is strongly recommended that business owners follow the below steps to minimise the risk of successful litigation against the business.”

To simplify this complex and often sensitive matter, Mr Thorburn briefly outlines the steps employers should take to ensure the investigation process and any ‘show cause’ is undertaken in a considered and professional manner.

  1. Undertake a thorough investigation

Terminating an employee in your financial business needs to be a considered decision, not an impulsive one. You must thoroughly investigate the allegations that have been made against the employee.

Prior to commencing an investigation, it is recommended that a business owner should seek legal advice as to how the investigation should be conducted. This may also have implications as to whether the investigation report will be the subject of legal professional privilege.

Before issuing the employee with a ‘show cause’ notice, the employer must be satisfied the findings of the investigation warrant an explanation from the employee.

  1. Meet with the employee

This is an opportunity to present the worker with the ‘show cause’ notice, which sets out the alleged conduct engaged by the employee and how that conduct may have breached material terms of the employment agreement and/or company policies.

The ‘show cause’ notice will allow the employee 1 to 5 days to respond, depending on the nature of the conduct. Always provide the employee with an opportunity to have a support person present at this meeting.

  1. Stand down the employee

Whether an employee should be stood down following the employer providing the ‘show cause’ notice will depend on:

a) the nature of the allegations;

b) the size of the employer (i.e. is there another area that the employee can work during the investigation); and/or

c) whether the accused employee’s attendance at the workplace will impact the impartial nature of any ongoing investigation (i.e. the prospect of retaliation or intimidation by the accused).

An employee should be stood down, on full pay, when the allegations are of a serious nature.

  1. Arrange a second meeting

Once the written response has been received and considered by the employer, or their legal representative, the employer should call a second meeting with the employee whereby his or her response to the allegations are discussed. At this time, the employer may determine that:

a) the employee should be given further time to provide additional information;

b) that the ongoing employment relationship is untenable;

c) that the employee has no case to answer; or

d) the employee should be issued with a warning, which in some cases is a first and final warning.

If the employer is satisfied the alleged serious misconduct occurred, then the employer can provide the employee with a notice of termination. Again, the employee should be afforded an opportunity to have a support person present at this meeting.

Of course, this is a process no employer ever looks forward to undertaking, but these recommended steps will minimise the risk of successful litigation.

About Bennett & Philp

Bennett & Philp is a leading provider of solutions-focused legal services to large corporates, small and medium enterprises and individuals.



General Information Only

S3 Consortium Pty Ltd (S3, ‘we’, ‘us’, ‘our’) (CAR No. 433913) is a corporate authorised representative of LeMessurier Securities Pty Ltd (AFSL No. 296877). The information contained in this article is general information and is for informational purposes only. Any advice is general advice only. Any advice contained in this article does not constitute personal advice and S3 has not taken into consideration your personal objectives, financial situation or needs. Please seek your own independent professional advice before making any financial investment decision. Those persons acting upon information contained in this article do so entirely at their own risk.

Conflicts of Interest Notice

S3 and its associated entities may hold investments in companies featured in its articles, including through being paid in the securities of the companies we provide commentary on. We disclose the securities held in relation to a particular company that we provide commentary on. Refer to our Disclosure Policy for information on our self-imposed trading blackouts, hold conditions and de-risking (sell conditions) which seek to mitigate against any potential conflicts of interest.

Publication Notice and Disclaimer

The information contained in this article is current as at the publication date. At the time of publishing, the information contained in this article is based on sources which are available in the public domain that we consider to be reliable, and our own analysis of those sources. The views of the author may not reflect the views of the AFSL holder. Any decision by you to purchase securities in the companies featured in this article should be done so after you have sought your own independent professional advice regarding this information and made your own inquiries as to the validity of any information in this article.

Any forward-looking statements contained in this article are not guarantees or predictions of future performance, and involve known and unknown risks, uncertainties and other factors, many of which are beyond our control, and which may cause actual results or performance of companies featured to differ materially from those expressed in the statements contained in this article. S3 cannot and does not give any assurance that the results or performance expressed or implied by any forward-looking statements contained in this article will actually occur and readers are cautioned not to put undue reliance on forward-looking statements.

This article may include references to our past investing performance. Past performance is not a reliable indicator of our future investing performance.