WHS investigation into misconduct matters insufficient to justify dismissal
In a decision handed down on 27 July 2017, the Industrial Relations Commission ordered the reinstatement of a Council Ranger who had been dismissed for failing to comply with de-escalation of aggressive conflict protocols following an incident involving multiple physical altercations with members of the public.
Facts
Mr Bassam Alameddine worked as Ranger at the City of Parramatta Council from 2002 and was dismissed effective 11 January 2017 following an incident on 14 June 2016 where he was assaulted twice while undertaking his duties. This incident followed previous concerns about the Applicant’s work performance, including:
His repeated use of aggressive language with the public,
Driving in a dangerous manner,
Illegally entering a Parramatta restaurant,
Directing traffic without authorisation, and
The way he had approached a number of his fellow employees.
In December 2015, Mr Alameddine was given a verbal warning by his manager, confirmed in a letter written to him by Council dated 21 December 2015, referring to his “aggressive manner and communication style to external customers.” It is noted the June 2016 incident also took place in the context of the Applicant undertaking numerous training sessions between 2011 and 2016 to assist him to deal with conflict and de-escalating aggressive behaviours.
Following the 14 June 2016 incident, a WHS incident investigation was conducted by Council’s WHS Compliance Unit. This investigation adopted the ICAM methodology, focusing on people, equipment, environment, procedural and organisational factors to tease out the ‘How and Why’ factors that led to the incident. Consequently, the decision to terminate Mr Alameddine’s employment arose from Council’s belief the incident of June 2016 demonstrated the Applicant’s:
Continued failure to understand the importance of behaving in a manner consistent with a professional workplace and Council’s Code of Conduct; and
Ability to bring Council into disrepute with customers, the NSW Police and members of the public.
Consideration and finding
Commissioner Murphy was of the view that by undertaking a WHS incident investigation into the incident of June 2016, Council did not follow the approach required of a disciplinary investigation. This meant a number of procedural fairness and other protections to the Applicant were not part of Council’s investigation process. It also meant that information about the Applicant’s state of mind between the first and subsequent assaults on 14 June 2016 was not drawn to the attention of Council decision makers as a possible mitigating factor prior to their decision to terminate Mr Alameddine.
Despite submissions from Council on the impracticality of reinstatement, Commissioner Murphy found Mr Alameddine had probably learnt a very important lesson from his experience, was unlikely to misconduct again in a similar fashion and therefore deserved another chance.
Comments on the decision
This case and decision confirms the need for employers to be very careful about the type of investigations they conduct into incidents at the workplace. While many incidents have a predominant WHS nature and therefore warrant an investigation with a focus on root cause analysis and other WHS elements, as soon as the issue of possible misconduct arises, a very different set of procedures specifically relevant to procedural fairness, the Award and Industrial Relation Act arise. These investigation criteria must be followed in order to ensure the elements referred to by Commissioner Murphy are covered.
Tips for Local Government and Public Sector employers
Accordingly, when incidents justifying a WHS investigation turn up potential disciplinary aspects, employers should consider and make a decision on whether or not to:
Continue the WHS investigation and set up a separate disciplinary investigation, or
Call a halt to the WHS investigation, establish a new disciplinary investigation and then restarting the WHS investigation once disciplinary issues have at least been reported on.
Alameddine v City of Parramatta Council [2017] NSWIRComm 1041
