Sacked Over 'Culturally Inappropriate' Behaviour: How Management and HR Got It Wrong

Sally Dillon • August 8, 2024

Introduction

A recent Fair Work Commission case involving a Redress Officer's complaint of unfair dismissal by a small not-for-profit employer highlighted the complexities and nuances involved. Here’s a closer look at the case and its implications for business HR practices.



Case Overview: Priscilla Lavery v Northern Territory Stolen Generations Aboriginal Corporation


A small not-for-profit organisation, established by survivors of the stolen generation, hired a worker as a redress officer in September 2022. This organisation advocates for stolen generations' rights in the Northern Territory and had nine employees at the time of her dismissal.


The worker's job was to inform and assist individuals with the Redress Scheme, which compensates those affected by the stolen generation. Since 2021, the organisation has facilitated this scheme, stressing cultural sensitivity from the start. During the interview, the acting CEO emphasised the need for cultural appropriateness, especially when visiting communities and respecting local customs.


Issues and Complaints

Several issues arose soon after the worker's employment. In May 2023, a complaint was lodged that she had interrupted an Aboriginal leader and her daughter during cultural training. The Fair Work Commission (FWC) noted this, as well as further complaints in June 2023 about her insensitivity and abrupt questioning during interactions with Indigenous elders.


These complaints, though documented, were not formally communicated to the worker until much later. The organisation highlighted that the worker's conduct jeopardised their relationships with the Indigenous community, crucial for their operation and legitimacy.


Suspension and Termination


On 8 November 2023, the worker was stood down on full pay. The Acting CEO told her to wait for further updates as they needed to follow proper procedures to protect the organisation. On 20 November 2023, the employer cited culturally inappropriate behaviour as the reason for her stand down.


The worker was terminated on 17 January 2024, due to staff refusal to work with her, client complaints, and her refusal to sign a new contract.

Lack of Communication


The worker claimed she repeatedly requested details about the stand down and the alleged inappropriate behaviour but received no response. She asked for copies of complaints and an opportunity to respond, but these requests were ignored. On 17 January 2024, she was informed of her termination via email.


She argued that performance and attitude issues usually warrant a chance to improve, which she was not given. She also noted that the employer could have provided in-house cultural training, which was not offered.


Legal Consideration and Outcome


The case raised questions about compliance with the Small Business Fair Dismissal Code and whether the dismissal was harsh, unjust, or unreasonable under the Fair Work Act.


The Code states:

"In other cases, the small business employer must give the employee a reason why he or she is at risk of being dismissed. The reason must be a valid reason based on the employee's conduct or capacity to do the job. The employee must be warned verbally or preferably in writing, that he or she risks being dismissed if there is no improvement."

The FWC considered if there was a valid reason for the dismissal, if the worker was notified, and if she was given a chance to respond, emphasising a "fair go all round" principle.


The FWC found that the employer did not provide procedural fairness. The worker's behaviour could justify termination only after a clear warning, appropriate training, and an opportunity for improvement, which did not occur. The FWC concluded the termination was harsh and unreasonable, ordering the employer to pay compensation.


Real World Implications

This case serves as a powerful reminder that meticulous attention to process and fairness can prevent legal battles and confusion. Ensuring proper handling of every issue can prevent unjustly shifting burdens onto managers or the organisation.


Practical Takeaways for HR Leaders

  1. Procedural Fairness: Always follow a fair and transparent process. This includes giving employees a chance to respond to allegations before making a final decision.
  2. Documentation: Keep detailed records of performance issues, warnings, and any steps taken. This not only supports the fairness of the process but also provides crucial evidence if the decision is challenged.
  3. Effective Communication: Clear and compassionate communication is key. Employees should understand the reasons for their dismissal and the steps taken by the employer to reach that decision.
  4. Understanding of Cultural Sensitivity: Develop a deep understanding and provide training on cultural sensitivity in the workplace, especially when interacting with vulnerable communities. This includes respecting cultural customs and ensuring that all interactions are conducted with care and respect.


Implementing Modern HR Strategies


To avoid pitfalls and ensure compliance, HR leaders should:

  • Develop Robust HR Frameworks: Create policies and procedures that support fair decision-making and protect both the organisation and its employees.
  • Train Managers: Equip them with the skills to handle termination processes fairly and effectively, and to manage performance and implement fair processes. Training should cover all aspects of employee management, including performance reviews, giving constructive feedback, and ensuring procedural fairness.
  • Enhance Communication Practices: Foster a culture of open and clear communication where employees understand the expectations and processes related to performance and conduct. Regular check-ins and feedback sessions can help address issues before they escalate


Conclusion

The lessons from this Fair Work Commission case are clear: fair processes, clear documentation, and effective communication are vital in employment termination. By implementing these strategies, HR leaders can not only ensure legal compliance but also foster a fair and respectful workplace culture.


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