Wednesday, 23 October 2013

Hear me out – dismissing an employee for misconduct

A recent case in the Fair Work Commission has highlighted the pitfalls some employers face when they dismiss employees for serious misconduct.The employer, Vanderfield Pty Ltd, terminated the employee’s employment on a Monday morning following an incident on the previous Friday afternoon, in which the employee confronted his manager with a ‘loud, forceful and aggressive’ complaint about the way the manager had communicated warnings to him. The employee had been already warned about his rude and abrupt conduct towards customers in the few days prior.

The Commissioner accepted that the employee’s conduct towards his manager comprised ‘serious misconduct’ under the Fair Work Act 2009 (Cth). The employee had engaged in ‘wilful or deliberate behaviour that is inconsistent with the continuation of the employment’. The Commissioner therefore accepted that Vanderfield had a valid reason for terminating the employee’s employment.

However, the Commissioner was critical of the lack of procedural fairness afforded by Vanderfield to the employee prior to his dismissal. The dismissal was communicated to the employee as a fait accompli, with no opportunity for the employee to explain his actions before the decision to dismiss him was made.

The Commissioner was critical of Vanderfield’s failure to allow the employee a chance to explain himself, even in circumstances where “there is strong prospect that any explanation or defence that could conceivably emerge would be unable to mitigate or justify the misconduct”. The Commissioner noted that there “is little to be lost and much benefit obtained” for Vanderfield to have allowed the employee to explain his actions before terminating his employment.

The deficiency in procedural fairness was not significant enough to outweigh the other factors under consideration, and ultimately the Commissioner decided that the termination did not amount to an unfair dismissal under the Fair Work Act.

Lessons for Employers

Ultimately, Vanderfield was able to successfully defend the dismissal because the Commissioner considered the gravity of the employee’s actions was enough to outweigh the lack of procedural fairness he received.

However, the criticisms directed towards Vanderfield by the Commissioner offer guidance for employers facing apparent employee misconduct. In most cases, employers should seek to allow an employee the opportunity to explain the reasons for their actions even where such an exercise may seem ‘futile’. Adopting this course of action will help place an employer in good stead, particularly where a Commissioner decides that the employee’s conduct was not ‘serious misconduct’ (but a lesser form of misconduct) under the Fair Work Act.

Should you have any queries about this decision and its effect on your business, please contact any one of our lawyers.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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