Mr C played his part very well, including making inappropriate sexual suggestions to the doctor. The student doctor became uncomfortable and Mr C commented that she handled herself poorly. Mr C then went on to ask the rest of the tutorial group how bad they thought the student doctor had been. After further criticism from her fellow students and Mr C the student doctor was reduced to tears, at which stage Mr C sought to comfort her by telling her she hadn’t done too bad after all.
After the tutorial had finished another student approached Mr C to discuss what had occurred. Mr C responded that the girl had only cried because of her cultural background. However this student was not happy with such a response and went on to write a letter of complaint which was signed by four fellow students. This letter was given to the Phase Director and after some discussion between the heads of various Departments within the University, a disciplinary procedure was commenced.
Mr C was found guilty of serious misconduct and given a final written warning and placed under supervision. The ERA found that the response was unjustified and ordered the University to pay Mr C $10,000.00 compensation.
One of the main problems that Mr C had with the way that the University had conducted itself during the investigation was centred around the unusual procedure that was contained in his Employment Agreement. Under his Agreement there were two separate processes set out, one if the University came to a preliminary view that there was misconduct and another if the preliminary view was that there was serious misconduct.
The ERA found that by having two separate processes that required the University to come to a preliminary view before there was an investigation was unfair on the employee. The two processes that were set out under the contract were actually quite different. The process for an investigation into misconduct was far more informal with a lot less stress being placed on the employee. Therefore when the University came to the preliminary opinion that Mr C’s actions should be investigated under the serious misconduct heading without thorough investigation, this had unfairly prejudiced Mr C’s employment.
The ERA ultimately found that Mr C’s conduct did constitute misconduct but not serious misconduct, and it was largely due to the process that had been carried out that ERA awarded of compensation to Mr C.
The finding was interesting in that the University was found to have conducted an unfair process in their disciplinary investigation despite adhering to the extensive procedure contained in the employment agreement that had been agreed between the University and Mr C.
This case sheets home how important it is to have correctly drafted Employment Agreements .It also is authority for the proposition that you can have as many procedures and policies as you like but just because it is written down does not mean that it is fair.
