However, fresh information came to light and it was discovered that more expense claims appeared to have been falsified.
B wrote to both M and R advising of the new expense claims and his concerns that they had not followed proper procedure for claiming expenses and their apparent dishonesty when previously questioned. B concluded that M and R had colluded in their explanations that the expense claims were a one-off genuine mistake.
M and R attended separate disciplinary meetings at which their jobs were at risk due to a policy in place stating that “willfully submitting a false claim for expenses” was an example of serious misconduct. Serious misconduct, if established, was expressed to usually lead to instant dismissal.
At the end of the meeting with M, B advised her that he had considered her explanation but it was unbelievable and her employment was to be terminated.
A similar conclusion was reached in relation to R, however, she was given an ultimatum “resign or be fired” – a classic constructive dismissal situation. R resigned.
Neither M nor R were informed of B’s conclusion that they had colluded in explanations to him.
Both M and R brought personal grievances against B. M claimed unjustified dismissal. R claimed she was constructively dismissed because of the ultimatum given to her. However, the Authority regarded the resignation as a dismissal.
The ERA found that B did not act fairly or reasonably during his investigation as B did not put to M and R his is conclusion they had colluded in presenting to him the explanations he disbelieved. Because M and B did not have an opportunity to comment B was unable to reasonably reject their explanations as untrue.
The ERA found that M was unjustifiably dismissed and R was actually dismissed and that her dismissal was unjustified.
The ERA also found B to be in breach of its dispute resolution process, because during the investigation B instructed his staff not to assist M and B with their grievances. The ERA was satisfied that it was delayed or obstructed in its investigation; despite the fact the instruction was later retracted. As a result, both Ms M and Ms B would be entitled to damages.
However, unusually, the case was referred back to mediation in an attempt for the parties to resolve the matter between themselves.
The moral of the story: “a flawed process will often produce a flawed result”. If in doubt seek legal advice.
