Fairness must prevail when dismissing an employee

Fairness must prevail when dismissing an employee

4 December 2014

Often an employer can be faced with a clear cut reason to dismiss an employee, such as persistent poor performance, serious or repeated misconduct or unacceptable behaviour in the workplace.

All may well be legitimate reasons to consider dismissing an employee. However, in taking this action there are some important procedures that must be applied to ensure the termination of employment is lawful.

Dismissal for unacceptable behaviour or misconduct may potentially be avoided by early intervention and by taking positive remedial measures in the form of redirection, retraining, coaching, counselling or reprimanding the employee. Whatever the issue, it should be dealt with promptly and thoroughly in a fair and reasonable manner.

It is important as an employer, you ensure that:

  • The employee is informed of the allegation to be investigated and the consequences are outlined if the allegation is sustained.
  • The employee has full opportunity to explain and comment on the matter.
  • You promptly make all reasonable efforts to establish and confirm the facts and verify these before any decision on action is taken.
  • You offer the employee the opportunity to be represented or have another employee present as a witness at any meetings with you to discuss the allegation.
  • You provide the employee with the opportunity to explain or justify his/her actions before the decision is taken.
  • A decision to dismiss the employee is made only after a thorough investigation and consideration of the facts, taking into account the employee’s work history and any extenuating circumstances, and ensuring consistency with rules that have been applied in past cases. If the decision to dismiss the employee is made, you should ensure the employee is fully and frankly informed of the reason(s) for the dismissal. 

In a number of unfair dismissal cases heard by the Fair Work Commission, the Commission determined that the principles of fairness hadn’t been applied and therefore found against the employers.

In a recent example, whilst the Fair Work Commission found there was a valid reason for the employer to dismiss two employees engaging in bullying behaviour, it determined that the dismissals were flawed on a number of grounds.

  • The employees were not given the opportunity to respond to or rectify the issues raised;
  • Not all the information about the allegations was provided to the employees; and
  • The employer had been aware of the bullying behaviour over a long period of time and had failed to take any action or intervention to invoke any disciplinary procedures.

Simply turning a blind eye to problems until they become a major issue will not be viewed sympathetically by the Commission. Employers must demonstrate responsive and appropriate actions have been taken and ensure that all investigations are carried out via a systematic and thorough process.

Termination of an employee must be viewed as having passed the “fairness test”.

Gabrielle McFarland, Boyce HR Manager

Source: Bob Kellow (IR Specialist |Industrial Mediation Services) 11 November 2014

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