Publications
The top five mistakes employers make when terminating employment: No. 4 Unfair dismissal
A frequent mistake employers make when dealing with dismissal, is failing to afford employees “procedural fairness”. The unfair dismissal provisions in the Fair Work Act 2009 operate so that as well as an employer having to have a valid reason to terminate employment (misconduct, poor performance, etc), they must also (generally) have followed a procedurally fair process in reaching the decision to terminate*.
This means that employers should ensure that:
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(generally) a series of disciplinary meetings and warnings should precede a decision to dismiss;
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allegations of misconduct against employees are fully investigated;
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an employee is given an opportunity to address the allegations against them before a decision on the dismissal is taken (usually in a formal disciplinary meeting);
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employees are given adequate (written) notice of any such meeting – and the issues to be discussed in the meeting — to allow them a chance to prepare;
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employees are allowed to bring a support person to the meeting;
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the outcome of the meeting is not pre-determined.
Whilst it is not always fatal to the defending an unfair dismissal case if there are errors of procedure (particularly in cases of very grave misconduct), there are numerous examples of employees being held to have been unfairly dismissed due to a failure to provide procedural fairness even where it is clear there has been wrongdoing on the part of the employee.
For example, in Allan Croft v Smarter Insurance Brokers Pty Ltd [2016] FWC 6859 an employee was held to have been unfairly dismissed where he had not been given an adequate opportunity to respond to the findings against him, even though it was admitted that he had been accessing, downloading and storing pornographic material on a work mobile phone and laptop.
Similarly, in Mr Nirmal Singh v Aerocare Flight Support Pty Ltd [2016] FWC 6186 an airport baggage handler who stated in a Facebook post “We all support ISIS” was held to have been unfairly dismissed for reasons that included the employer did not adequately investigate the employee’s claims that his post was sarcastic and that he actually was opposed to ISIS.
Whilst ensuring that a procedurally fair process is followed can delay the decision on termination (due to the need to undertake an investigation and hold disciplinary meetings), it is usually time well spent. Remember that if an employee is successful in bringing an unfair dismissal claim remedies can include an order to reinstate them in their role, as well as financial compensation.
* Not all employees are protected by the unfair dismissal régime – see the previous article in this series.