Dear Reader,

Sometimes, dismissing an employee for misconduct isn’t as cut and dried as you might imagine.

Even if you’re sure an employee has committed misconduct serious enough to warrant you dismissing them on the spot, it may be harder to prove than you think…

For example, if you dismiss an employee for a combination of reasons that include misconduct, summary dismissal may not be allowed.

Take this scenario as an example:

Let’s say an employee has been having performance issues for around 6 months – but you haven’t yet taken any steps to counsel or warn them about it.

Then, they send around an email with defamatory comments about some senior members of staff. In your mind, you probably think this is a good chance to dismiss the employee for misconduct and be done with them.

But Fair Work Australia may not see it this way

They will take into account ALL the reasons the employee was dismissed, including their performance issues.

And because you didn’t counsel the employee properly about those issues, you could be held liable for unfair dismissal.

But there is a way you can be sure you won’t be exposed to an unfair dismissal claim when dismissing an employee for misconduct.

Check out Charles’ article below to find out what it is…

Until next time…

Claire Berry
Workplace Bulletin

And now over to our Editor-in-Chief Charles Power…

Continues below…

Why you must tread carefully when dismissing for misconduct
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

If you dismiss an employee with immediate effect and without making any payment in lieu of notice, you will dismiss them summarily. And generally, summary dismissal is only acceptable if an employee has committed gross or serious misconduct.

So if you dismiss an employee summarily in circumstances where the employee has not committed serious misconduct, you might expose yourself to an unfair dismissal claim.

But you could avoid the risk of an unfair dismissal claim altogether if you choose to pay the employee in lieu of their notice entitlement.

Fair Work Australia (FWA) recently considered such a case, involving a University lecturer dismissed for serious misconduct (RMIT v Asher [2010] FWAFB 12000). The lecturer was dismissed summarily by the university.

In assessing the case, FWA found that the dismissal could be considered fair because:

• a valid reason existed for termination because the reasons relied on by the employer were sound, defensible and well founded; and
• the employer had taken reasonable steps to investigate the allegations of misconduct and had given the employee a fair chance of answering them.

However, FWA also found that the dismissal could be considered unfair because:

• the reasons for termination involved a combination of performance and conduct issues, which fell short of serious misconduct. Therefore, the employer should have counselled and warned the employee before dismissing; and
• termination was not a fair and reasonable form of disciplinary action in the circumstances of the case.

Therefore, on balance, FWA ruled that termination was harsh, unjust and unreasonable.

In this case, if the employer had simply paid the employee his notice entitlement instead of dismissing him summarily, they would have won the case.

For more information on how to deal properly with employee misconduct in your workplace, check out chapter H3 How to Manage Employee Misconduct in your Employment Law Practical Handbook.

Not yet a subscriber to the handbook? Click here for more information.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Tags: Dismissal