Gross misconduct: Dealing with serious complaints against the C-suite

However, when a serious complaint concerns a high-ranking executive – say a C-suite member - is there a difference in how that case should be handled? Or is it business as usual for HR?

Carly Stebbing, Partner and Head of Employment Law at Longton Legal in Sydney, says that the first steps in a high-profile case are to determine whether it should be dealt with informally or formally.

Refer to company policies

“This is especially important when the complaint relates to sexual harassment. The new positive duty to prevent sexual harassment guidelines require a victim-centered approach. Recent amendments to work, health and safety legislation to impose a positive duty on employers to eliminate psychosocial hazards and related guidance must also be considered,” she says.

“HR should refer to the company’s policies and procedures on what steps to take for internal complaints. If there are none, proper complaint procedures provide organisational justice and procedural fairness.”

According to Stebbing, considerations should be given to ensuring:

• fairness and transparency during the process
• the health and safety of both parties during the process
• confidentiality of the process.

Furthermore, during any investigation into a complaint, HR should consider the following:

• Parties being able to bring a support person to any meetings during the investigation
• Parties receiving complete details about the complaint and a detailed summary of all the adverse information that may be relied on
• The respondent to have a reasonable time to respond in to the complaint
• Having the investigation conducted by a person who is not connected with the complaint, and is unbiased or independent
• Having the final decision made by a person who is not connected with the complaint, and is not biased.

From here, Stebbing tells HRD that HR practitioners should meet with the complainant to obtain more details and interview them about the facts.

“This will determine what steps to take in future, such as whether the complaint is serious enough to warrant an investigation and whether an external investigator needs to be appointed if the complaint involves serious concerns such as bullying or sexual harassment,” she explains.

It’s important to document the complaint clearly, as it may become procedurally unfair to put the allegations to the respondent if they are unclear, Stebbing says.

“Appropriate notice of the complaint should be given to the respondent and communication for all participants of the steps that will be taken. In some situations, early resolution is possible, with direct private discussion between the parties or an impartial third person helping those involved to talk to each other and find a solution.”

When can an executive be fired for gross misconduct?

Gross misconduct is often the most serious level of complaint that HR needs to deal with – it can include assault, sexual harassment, fraud and theft to name a few. According to Stebbing, an executive can be fired immediately and without any notice for such an offence.

“Serious misconduct or gross misconduct is willful and deliberate behaviour that is inconsistent with the continuation of the employment contract or conduct that causes serious and imminent risk to the reputation, viability or profitability of the business, or health and safety of a person,” she explains.

“More common would be terminating the senior executive with notice or payment in lieu of notice. There is no statutory protection from unfair dismissal for employees that are not award/agreement covered and earn over the high-income threshold, currently $175,000.”

Should a case be treated differently because of seniority?

When it comes down to the crux of whether or not seniority demands some sort of leeway, Stebbing is very clear in her guidance.

“The short answer is no,” she tells HRD. “A person’s seniority in an organisation should not cause a complaint to be dealt with differently. Indeed, power imbalances between complainants and senior executives can weigh in favour of formal investigations and the matter being taken more seriously.

That said, these matters are often dealt with differently, Sebbing says, “because of the real or perceived sensitivity of the complaint becoming more widely known (and attracting media attention) and because senior executives are not typically protected from unfair dismissal.”

According to Stebbing, other reasons this type of complaint might be dealt with differently include:

• Witnesses may be less likely to come forward to expose an executive’s behaviour for fear of potential victimisation
• Executives are more likely to retain legal counsel should a serious complaint arise
• Independent external investigators maybe appointed to conduct investigations to avoid bias of internal personnel.