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The top five mistakes employers make when terminating employment: No.5 Alternatives to Dismissal
So you’ve got a valid reason to dismiss an employee, right? (Established misconduct, poor performance, etc).
And you’ve made sure you’ve afforded the employee procedural fairness? (You’ve held a disciplinary meeting where the employee has had a chance to address the allegations against then accompanied by a support person).
You’ve been careful to make it clear that the outcome of the disciplinary meeting is not predetermined?
And you’ve left a reasonable time after the closure of the meeting to show that you really have considered everything the employee has raised before making a decision to terminate?
Surely there’s no way an employee could successfully bring an unfair dismissal claim* now… is there…?
Even where employers have a valid reason to dismiss an employee, and have followed a best practice approach to procedural fairness, they can come unstuck if – regardless of these points – the dismissal is still considered to be “harsh, unjust or unreasonable.” Often it is the notion of harshness which poses employers the most difficulty.
Wrapped up in the concept of harshness is the idea that “the punishment must fit the crime”. In other words, the penalty of dismissal must be a proportionate response to the offence.
Frequently employees are found to have been unfairly dismissed – even where it is accepted that there has been wrongdoing – because it is held that dismissal is an overly harsh penalty and another sanction (such as a final warning) would have been a legitimate response.
In Mr Joseph Fagan v Department of Human Services [2012] FWA 3043 a dismissal was found to be unfair on the ground of harshness even where it was admitted that the employee (a guard) had committed a serious breach of the organisation’s policies (opening a cell door during a period of lockdown) which allowed inmates to escape. Fair Work Australia made this finding even though it found there was a valid reason for Mr Fagan’s dismissal and that he had been afforded procedural fairness. Relevant factors in finding the dismissal was harsh included the employee’s advanced age (72), his long service (without previous serious incidents) and the fact that another employee in a similar circumstance had not been dismissed.
It is strongly advisable for employers to consider all other alternatives before taking action to dismiss an employee. For example, written warnings or compulsory training. If these options are not viable, a record of the fact that they have been considered, and the reasons they are not considered practicable will be a useful tool in defending any unfair dismissal proceedings that may be brought.
Employers can also mitigate the risk of a dismissal being found to be harsh by being proactive in addressing early incidents of employee misconduct or poor performance. A reluctance to raise issues of misconduct or poor performance early on (through the issuing of formal warnings, for example) can frequently hamper employers who seek to dismiss an employee at a later date (and find themselves having to establish that the dismissal was not harsh, notwithstanding the employee had not been subject to any previous disciplinary action).
*For the circumstances in which employees are entitled to bring unfair dismissal claims see article No.3 in this series.