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.