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It's a Kangaroo Court

According to Wikipedia, the term Kangaroo Court "... comes from the notion of justice proceeding "by leaps", like a kangaroo – in other words, "jumping over" (intentionally ignoring) evidence that would be in favour of the defendant".

There have been many occasions in managing employee disciplinary matters where I have found it necessary to overcome the predisposition of managers to jump to conclusions and predetermine the outcome of an investigation. It is often very easy for the manager, particularly involving employees with prior performance issues, to conclude before the investigation has even commenced, that the allegations against the employee are true, and the outcome will be termination of employment.

Besides failing to provide a fair and just process to the employee in question; such an approach makes it difficult to ascertain the truth of the situation, as the (un)conscious bias permeates the investigation, resulting in evidence being sought to support the predetermined outcome.

It looks like one such Kangaroo Court is playing out on the world-stage in the sport of Formula 1.

At the moment, it looks like one such Kangaroo Court is playing out on the world-stage in the sport of Formula 1; where a long-term contractor (Lewis Hamilton), who is recognised as a star-performer (7-time World Champion), is seeking to influence the leaders of the organisation (the FIA) to terminate an employee (Michael Masi, Race Director) because the contractor (Hamilton) does not agree with a decision that was made by the employee (Masi's 2021 final race decisions that resulted in Max Verstappen winning the 2021 title). This contractor (Hamilton) is using his power and position in the industry to procure the outcome that he wants, to make up for a result which impacts his career and status, and which he feels is unjust.

Is this fair?

In any workplace, fairness comes when employees are afforded a just process, free from prejudice, self-interest and favouritism.

In Australia (interestingly, if you didn't already know, Michael Masi is Australian), fairness is enshrined in the legislation that covers employment - the Fair Work Act 2009 (this won't help Michael Masi, as he's not employed in Australia).

When it comes to termination of employment, there are two main avenues for a dismissed employee to make a claim against the employer, both via the Fair Work Commission (FWC):

Unfair Dismissal remedy, which considers if the termination was, harsh, unjust, or unreasonable. Refer to section 387 of the Fair Work Act 2009 for more information on what is considered by a Commissioner when reaching a decision. In this case, it is up to the Applicant (the terminated employee) to demonstrate that the termination was harsh, unjust or unreasonable. The FWC can direct reinstatement and/or award up to 26 weeks' remuneration as compensation, if they find in favour of the Applicant.

Adverse Action (General Protections) resulting in dismissal - this considers the workplace rights that were breached in reaching the decision to dismiss the employee.

Adverse Action (General Protections) resulting in dismissal - this considers the workplace rights that were breached in reaching the decision to dismiss the employee. You can find out more about General Protections on the Fair Work Commission website. In this case, the Respondent (employer) must demonstrate that the decision to dismiss the employee was not related to a protected workplace right. If the FWC find in favour of the Applicant, there is no cap on what the employee can be awarded by way of compensation.

Obviously avoiding such a claim is preferable for any organisation.

To help reduce the likelihood of a claim being raised, or losing when one is, organisations need to avoid engaging in a Kangaroo Court outcome; so, some best practice tips are:

  1. Engage someone impartial, such as someone outside your organisation, to conduct the investigation; or at least another manager who is not perceived as having a bias.

  2. Ensure the employee/s against whom the allegations are raised are provided with clear information about the allegations, or the suspected conduct.

  3. Provide the employee/s an opportunity to reply to the allegations and tell their side of the story and ask them to name witnesses who they believe will support their story.

  4. Speak with anyone who was involved in the matter, not just the ones who raised the issue. If the employee nominates a potential witness, interview them.

  5. Seek a written statement from each of those with whom you speak - initially, this doesn't have to be lengthy (and you can draft it for them), just a summary of what they saw, and their agreement that this is what they are stating. This is an important step to prevent the defence of a claim coming undone because a key person in the investigation changes their story, or can't remember what they said.

  6. Only collect information that was directly witnessed. Never base a decision on hearsay, opinion, or conjecture.

  7. Present the employee/s with any information or evidence you will use to reach your decision (you should not specifically reveal from whom information was obtained, but it may be obvious); and allow them to respond to this evidence/information.

  8. Act quickly. Don't let the matter drag on for days, weeks or months. Unless an investigation is particularly complex, it should not take more than 10 working days to conclude. Failing to resolve a disciplinary matter in a timely manner could lead to other claims from the employee, such as a Worker's Compensation claim due to stress.

  9. Consider whether the actions of others in the organisation contributed to the matter (for example, a lack of training, poor supervision or instruction, pressure to perform, rostering issues).

  10. Think about whether the employee/s performance or conduct can be corrected, and/or what your policies say (e.g.; if you have a 'zero tolerance' specified in a policy, such as for breach of a safety rule).

  11. Resist the undue influence of powerful players in the organisation who may be baying for blood. Stick to the facts and/or what can be substantiated.

  12. Genuinely consider all of the evidence and make notes as to what lead you to reaching this decision.

  13. If the final result is a decision to terminate the employee/s, remember that in industrial relations, this is the equivalent of capital punishment in criminal law, so be sure that the 'punishment fits the crime'.

I will be interested to watch how the Hamilton/Masi saga plays out and whether Masi is afforded a fair and just process. If he resigns, I'm sure he will do so only because of considerable pressure from the FIA. If he was working in Australia, that may provide him scope for a constructive dismissal claim; but that's a topic for another post!

If you need assistance with conducting a fair, just and reasonable investigation process, or support to manage a Fair Work claim, we are here to help.


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