Two recent English decisions highlight the particular challenges when managing legal professional privilege in the context of resolving employee issues. We consider these decisions and how the principles may apply in Hong Kong in relation to dominant purpose, waiver and iniquity and the lessons that they provide to employers in the context of employee investigations and disciplinary actions. Continue reading
In NHS 24 v Pillar, the EAT has ruled that an over-thorough investigation will not of itself render a dismissal unfair. It is for the decision-maker to decide what is relevant to their decision, and it is their state of mind that will determine whether dismissal was within the range of reasonable responses. The reasonableness of an investigation is relevant only where it results in the absence of relevant information being given to the decision-maker. Continue reading
A recent High Court ruling serves as a reminder to employers not automatically to suspend an employee accused of misconduct while an investigation takes place. Employers should first seek the employee’s response to the allegations and consider whether suspension is actually necessary in order to carry out a fair investigation (or for other legitimate reasons) or whether there may be other options such as a temporary reassignment. It may also be relevant whether the contract of employment or handbook policies give an express right to suspend and set out when suspension may be appropriate.
There has been further development in the Romero v Farstad Shipping saga, with the Full Federal Court this week dismissing each of Ms Romero’s appeal grounds in relation to damages.1 The Court’s decision should signal the end of a drawn-out dispute between the parties and has highlighted the complex legal issues that can arise from the interaction between company policies and employment contracts.
This latest decision is a timely reminder for employers to:
- consider expressly excluding company policies from employment contracts;
- remain mindful that where a contract of employment requires an employee to observe a policy, the employer may be in breach of that contract if it does not comply with its own obligations under the policy – even obligations that are procedural in nature; and
- reconsider workplace policies to ensure they avoid unintentionally imposing unnecessary obligations on themselves.
Unions are becoming increasingly prevalent across Asia. Here we take a look at which aspects of the employment relationship unions may be involved in Singapore, Hong Kong, the People's Republic of China, Thailand, Indonesia, South Korea and Japan.
A recent decision in the anti-bullying jurisdiction of the Fair Work Commission has highlighted the (potentially complicated) interaction between bullying complaints and an employer's internal investigation process.
In Lynette Bayly  FWC 1886, the Commission made an interim order staying an employer’s internal investigation of a complaint (that is, preventing the employer from finalising a draft investigation report), preventing any disciplinary action in connection with the investigation and preventing termination of the complainant’s employment – until such time as the matter is determined.
On 16 December 2016, the Securities and Futures Commission (SFC) issued a circular which introduces new measures to heighten the individual accountability of senior management of licensed corporations (LCs), through the designation of one or more Managers in Charge (MIC) of certain Core Functions. Our briefing on the new MIC Regime, including implementation deadlines, can be located here.
As senior management, legal and compliance should work towards appointing MICs ahead of the 17 July 2017 deadline, it is important that HR teams are engaged early on so that any consequential changes to HR processes can be implemented in parallel.
The New Zealand Court of Appeal has ruled on the standard for employers in justifying dismissal decisions, finding it requires an overall assessment of whether the decision was fair and reasonable in the circumstances.
In A Ltd v H  NZCA 419, the Court of Appeal found that the employer had acted fairly and reasonably in dismissing an employee accused of violating its sexual harassment policy despite minor changes to witness accounts, procedural discrepancies in the investigation and inconsistent treatment of another employee in similar circumstances.
Where an employer is contemplating dismissal for gross misconduct on the basis of disputed and uncorroborated evidence, fairness may require it to carry out a broad investigation, including into evidence that goes to credibility.
Following the decision in Ramphal, a further EAT ruling has reiterated the importance of confining HR's role in disciplinary proceedings to one of advice on legal questions and process, and of ensuring that the conclusions in any investigatory report include all the conclusions of the person investigating the allegations and no-one else's view.
In Dronsfield v University of Reading the EAT was critical of the fact that significant opinions favourable to the claimant were removed from the draft investigation report at a late stage, following review by the HR department and in-house lawyer. The tribunal should have sought an explanation for the changes in order to be able to assess the fairness of dismissal based on the report, so the case was remitted for reconsideration.