When an employee who has been with employer for a significant number of years acts inappropriately, can their employment be terminated? The answer, assuming a fair process is followed, is yes – but some care should be taken.
In a recent decision of the Fair Work Commission, a handyman with 31 years’ service brought an unfair dismissal claim after he was summarily dismissed for inappropriately touching a receptionist and refusing to follow reasonable directions to stay away from her. Even after the Commission accepted the handyman’s claim that the touching was non-sexual (which was consistent with the receptionist’s view), the Commission determined the touching was nevertheless inappropriate.
The Commission gave careful consideration to the employee’s long tenure with the company, his age and his limited prospects of finding new employment if his dismissal was upheld. Despite these factors, the handyman’s inappropriate behaviour was found to have justified the summary dismissal.
Why Age and Tenure Matter
To make out an unfair dismissal claim, the Commission only needs to be satisfied that the termination was either harsh, unjust or unreasonable. Specifically, harshness includes the effects that the termination might have on the employee’s life. Usually factors such as significant service and mature age will constitute persuasive arguments in the employee’s favour.
For older employees, or those that have been with one employer for many years, it is foreseeable that the termination of their employment might have an extremely detrimental impact on their life going forward. As a result, the Commission sets a higher bar for the termination of longer serving employees. Therefore, extra care should be applied when taking disciplinary action against older employees or those who have served long terms.
In this case, however, the employee’s lack of remorse and failure to provide credible evidence led the Commission to look beyond these factors weighing in favour of “harshness” to ultimately uphold his dismissal.
Lessons for Employers
If a long-term employee has acted inappropriately and termination of their employment is an appropriate response to the conduct, employers should not feel hamstrung in doing so merely because the employee has completed significant service and/or is of mature age.
These factors may be relevant to making a decision on whether to dismiss; however, an employer must weigh up the competing risks, including the practical risks of continuing to have that employee in the workplace.
Case: George Talevski v Chalmers Industries Pty. Ltd. [2018] FWC 1807
