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:

  • (gen­er­al­ly) a series of dis­ci­pli­nary meet­ings and warn­ings should pre­cede a deci­sion to dismiss;

  • alle­ga­tions of mis­con­duct against employ­ees are ful­ly investigated;

  • 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);

  • 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;

  • employ­ees are allowed to bring a sup­port per­son to the meeting;

  • 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.