So you’re an employee and you’ve had allegations put to you which are downright lies and smear your good name.  You want to give it back with both barrels right – assert your innocence, challenge the accuser and clear your good name!  Well, not so fast.  It can pay to consider the role of remorse and the psychology of decision makers if you want to try and keep your job.

Several recent Fair Work Commission cases have made reference to a presence or lack of remorse in deciding whether a dismissal is harsh, unjust or unreasonable.  This is usually relevant in obvious misconduct cases, eg a worker standing on top of a heavy piece of running machinery to take a selfie is a significant WHS issue.  However, we are increasingly seeing remorse being used as a factor by decision makers deciding a penalty outside obvious misconduct cases, particularly in the public sector.

Remorse is a concept more commonly associated with the criminal law rather than workplace relations.  This makes sense where the criminal onus of satisfaction beyond a reasonable doubt applies but what about disciplinary matters where the civil standard of the balance of probabilities usually applies.

Sometimes the evidence of wrongdoing is clear, such as where there are several witnesses to a workplace brawl (even then doubt can exist about who threw the first punch).  More often though, decisions about credibility need to be made and inferences drawn, all without the benefit of a formal hearing process.  It is difficult to say that a lack of remorse for conduct which the employee has consistently denied and which is only substantiated “on the balance of probabilities” should be given any weight in assessing penalty.  Workplace bullying which relies on the “manner” of an employee is an example.  Also take the example of 2 employees alleged to have had secret conversations at work in their native language.  Inappropriate maybe, but does remorse really have a role to play in this situation?

In our view, the role of remorse should be limited in other than clear cases of misconduct.

Practically however, our observations are that decision makers sometimes like to see a little humility – confession followed by forgiveness if you will.  It is sometimes a fine decision about whether an employee has more chance of keeping their job or avoiding a disciplinary penalty by tugging their forelock in the hope the decision maker will show compassion rather than by asserting their innocence loudly and expecting vindication.  A little remorse might be a good thing sometimes.  Please contact us if you would like any further information or help.