Even experienced human resource professionals and practitioners can find it difficult to weigh up whether an employee’s misconduct is serious enough to justify dismissing an employee without providing for work during a notice period or payment in lieu of notice.
Some recent decisions from the Fair Work Commission captured in Workplace Complaints Tracker illustrate key issues that may arise when summarily dismissing an employee for serious misconduct.
Misconduct by employee
In Sharma v Teleperformance Australia (t/as Teleperformance Australia) [2018] FWC 4402, an employee was dismissed for allegedly falsifying a customer’s email in a work database, despite their denials to the contrary. The Commission held that this was not a valid reason for a standard dismissal, let alone summary dismissal. The employer failed to establish that the employee made more than an innocent error and had not taken steps to ensure employees understood the possible consequence of such errors. The alleged misconduct of an employee must go beyond a mere failure to properly render services.
Where employees were summarily dismissed for breaching important safety policies, employers have found more success. In both Weekley v Essential Energy [2018] FWC 1448 and Rust v Farstad Shipping (Indian Pacific) Pty Ltd (t/as Farstad) [2018] FWC 2676, policies directed toward a serious possibility of harm to employees or others were essential to a finding that serious misconduct had occurred, and that summary dismissal was justified. The Commission also highlighted the importance of ensuring employees are properly trained and understand the ramifications for breach. In Weekley, the Commission relied on the fact that the employee had been retrained in that policy mere days before the relevant misconduct.
Dismissal procedures crucial
Two recent decisions highlight that failure to comply with the notice procedure may transform a standard dismissal into a summary one, raising more issues for the employer. In Leon v Bernini Stone & Tiles [2018] FWC 3780, the employer’s lack of familiarity with dismissal and the necessary features that justify it contributed to their failure to pay an employee in lieu of notice in a timely fashion, and led to Beaumont DP’s finding that the decision was ‘disproportionate in all the circumstances’. In Knutson v Chesson Pty Ltd (t/as Pay Per Click), an employer deliberately refused to pay out personal leave or payment in lieu. Commissioner Cambridge deemed this procedure was both ‘unnecessarily callous’ and ‘plainly unjust’.
While making sensitive employment decisions, having access to the latest decisions from the Fair Work Commission is a vital step toward adopting sound disciplinary procedures and avoiding costly adverse findings. Workplace Complaints Tracker provides access to those decisions plus locally-authored content and a wealth of data. Its unique search function means you can build a focussed, on-point data set to inform and guide your decision-making.
Jeremy Bradfield, Editor
