By Stephanie Hosking | Hr Manager HR Human Resource Services

By Stephanie Hosking – HR Manager, Key Business Advisors

Giving an employee their marching orders is a complex matter. No matter what the employee’s mistake, how can you be sure you are doing the right thing?

We can cite examples – no brainer situations where you would think termination is the obvious outcome. An employee steals money from the cash register, another insults their manager in front of everyone. Surely they can be terminated for that?

The reality, however, is not as straight forward.

Clients often call us after a similar incident thinking it’s ok to terminate on the spot. For the termination to be fair, it can’t be harsh, unjust or unreasonable. The process followed when terminating the employee is as important as the reason to terminate.

It’s the process, or lack of it, that gets most employers into trouble. An employee was compensated almost $7,000 after being terminated for killing 50 chickens in a poultry farm when falling asleep at the wheel of her tractor after a big night. The reason the courts found it was unfair was because of the lack of process followed by the employer. They did not investigate the incident or set out to prove she was intoxicated at the time. They did not afford her procedural fairness by not allowing her to have an opportunity to respond to the allegation. (1.)

How Do We Define Harsh, Unjust or Unreasonable Dismissal?

Section 387 of the FW Act lists the criteria for considering whether a termination is unfair. In considering whether a dismissal was harsh, unjust or unreasonable, the FWC takes into account:

  • Whether there was a valid reason for the dismissal related to the person’s capacity or conduct;
  • Whether the person was notified of that reason;
  • Whether the person was given an opportunity to respond to any reason related to the capacity or conduct of the person;
  • Any unreasonable refusal by the employer to allow the person to have a support person present to assist at any discussions relating to dismissal;
  • If the dismissal related to unsatisfactory performance by the person—whether the person had been warned about that unsatisfactory performance before the dismissal;
  • The degree to which the size of the employer’s enterprise would be likely to impact on the procedures followed in effecting the dismissal;
  • The degree to which the absence of dedicated human resource management specialists or expertise in the enterprise would be likely to impact on the procedures followed in effecting the dismissal; and
  • Any other matters that the FWC considers relevant.

Let’s Be Clear, What is Serious Misconduct?

There is a lot of misconception as to what serious misconduct and summary dismissal is. Serious misconduct can be defined as:

  • Wilful, or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;
  • Conduct that causes serious and imminent risk to:
    • The health or safety of a person; or
    • The reputation, viability or profitability of the Company’s business.

Examples of serious misconduct are fraud, theft, assault, intoxicated employee and an employee refusing to carry out a lawful and reasonable instruction.

Serious misconduct may result in summary dismissal – which means dismissal without notice. Don’t fall into the ambiguity trap – make sure you clearly define these terms in your policies and in the contract of employment.

It is very important to note that even if the employee’s behaviour is deemed serious misconduct and it justifies summary dismissal, the employee should not be terminated ‘on the spot’. Summary dismissal means termination without notice. A fair and due process is still required. An investigation might still be necessary to find out all the relevant facts, and a disciplinary meeting will be required to ensure the employee has been given an opportunity to respond.

Do Your Own Investigation

It is crucial to investigate the incident before making a decision to terminate. You cannot rely on what other people have told you or what you believe happened. It’s only fair to give the employee an opportunity to explain. Especially if your intention is to terminate.

Take this recent case at a bar in Darwin, involving a supervisor who called his manager a ‘racist bitch’. The court found that dismissal was harsh and unjust and that there was not valid reason for the termination. They found the decision was ‘maybe taken out of frustration’ and that the situation should have been properly managed. (2.)

So what action should be taken when an employee swears at his manager. Generally, the process to follow would be:

  • Interview the employees involved in the incident asking questions such as:
    • What happened?
    • Who said what to whom?
    • What words were used?
    • What tone?
    • Is this the first time it happens?
    • What was the response?
  • Interview the other employees who were either involved or witnessed the incident. Ask questions such as:
    • What did you see?
    • Who was there?
    • What did you hear?
    • What tone?
    • What words were used?

Once everyone is interviewed, you should have a better understanding as to what happened and whether a disciplinary meeting is warranted.

Fair Play is Crucial

If there is to be a disciplinary meeting, it is important to provide procedural fairness to the employee and follow the process:

  • Give the employee 24-48 hours’ notice of the meeting,
  • Invite them to bring a support person,
  • Review your policies to understand where is the breach if any, etc.

This meeting should give you an understanding of the employee’s point of view. You will discuss the incident, any previous warnings, the specific policy breach(es), and you will give the employee an opportunity to respond. Once you have heard the employee, it’s time to take a break to deliberate.

As described above, the FWC can take any other matter into consider if they find it relevant. This means that before making the decision to terminate the employee, some factors should be carefully considered. For example, employee record and previous warnings, type and severity of the incident, previous decisions made by management in a similar situation, policies in the business, etc.

Take the example of the employee swearing at his manager:

  • Employee record: Has the employee been involved in a similar incident in the past and has he received a warning? How long has the employee been employed and how many incidents has he been involved in?
  • Type and severity of the incident: If after the investigation, you can show that the employee did swear, consider whether the swear word is ‘common’ or ‘offensive’. Consider also whether swearing is part of the culture of the workplace. This could affect the severity of the incident.
  • Previous decisions: If you have not terminated an employee who did the same thing six months ago, consider whether it is fair to terminate this employee this time around.
  • Policies: Do your policies clearly outline what is acceptable and not acceptable behaviour? Do you have a code of conduct? Is it enforced, or is it just a piece of paper sitting on a shelf? Do your staff know your policies? Have they signed them? Have you ever done a policy workshop to ensure your staff and managers know and understand all your policies?

If the incident is serious enough and fits within the serious misconduct definition above; if you have been able to prove it; if you have afforded procedural fairness to the employee and all or most of the above points are satisfied, the risks will be minimised and you could decide to terminate.

If you need advice before terminating an employee, call us on 1300 4 ADVICE.

Sources

  1. https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc3126.htm
  2. https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4312.htm

About The Author

Stephanie Hosking
Stephanie Hosking

Stephanie helps solve people management issues and maintain effective HR processes to improve business performance.

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