There are countless situations and behaviours that justify termination of an employee, but even in the case of clear gross misconduct there are steps that must be taken and entitlements offered to an employee to ensure that the dismissal follows a valid process, as well as having a valid reason. This HR Highlight will explore the do’s and don’ts when it comes to misconduct.

Misconduct

As we have explored in previous HR Highlights on misconduct and dismissing sick workers all businesses should have a misconduct policy in place that clearly communicates what constitutes misconduct in the business, and reminds staff that a possible and likely outcome of misconduct in the workplace is summary dismissal, or being fired on the spot.

Even in the absence of such a policy and communication system there are some clear areas of misconduct that a ‘sensible person’ would assume would place continuing employment into peril:

  • Violence
  • Endangering others
  • Working under the influence
  • Theft
  • Confidentiality breaches

The Fair Work Ombudsman defines misconduct as: “Serious misconduct involves an employee deliberately behaving in a way that is inconsistent with continuing their employment. Examples include: causing serious and imminent risk to the health and safety of another person or to the reputation or profits of their employer’s business, theft, fraud, assault, or refusing to carry out a lawful and reasonable instruction that is part of the job. Other known term: misconduct.”

Procedural Fairness

Even when there is a clear case of employee misconduct there is a requirement to properly investigate incidents, and address any mitigating circumstances before terminating the employment relationship. This is called procedural fairness.

To address misconduct, while ensuring procedural fairness is followed there are some Do’s and Don’ts.

Do:

  • Before the initial meeting
    • Investigate the incident including gathering independent witnesses versions of events if possible
    • Call a performance meeting with as much notice as is possible and practical (eg. later in the day or the next day).
  • At the initial meeting
    • Allow a support person – like all performance meetings the employee should be allowed a support person if that is their preference
    • State the facts of the incident as indicated by the investigation
    • Seek the employees version of events  – noting down discrepancies from the investigation
    • Discuss the next steps acknowledging the employees version and any mitigating circumstances
  • After the initial meeting
    • Consider the employees version for an appropriate time before making a final decision
    • Call for another meeting
    • Document decision and communicate ie. Termination Letter
  • At the final meeting
    • Allow a support person
    • Acknowledge the employees version of events
    • Outline the decision the business has made
    • Provide written advice in the form of a letter
  • After the final meeting
    • Establish and pay all entitlements

Don’t:

  • Scream your fired or react in an emotional way
  • Forget to investigate decisions should not be based solely on the information of a wronged party
  • Drag the employee into a meeting straight away give them a chance to gather themselves and a support person if needed, but stand them down from work duties until the meeting if the situation requires it
  • Jump to decisions and final letters without hearing the employees version of events
  • Withhold “theft” or other amounts from the entitlements payments a legitimate civil claim from the employer on the employee for losses is not a valid reason for deducting from employees entitlements

Real World

In operation it is often harder to remember these common sense tips. It is, however, worthwhile to try and to communicate this to line managers within the business. A recent case from the Fair Work Commission has highlighted this, with the Commissioner ruling that two employees that had a violent physical altercation with a manager were both unfairly dismissed simply because their side of the story was not heard or acknowledged.  Literally the dismissal was unfair ONLY because the business did not show procedural fairness.

The Commissioner said that had the business “properly investigated and considered the circumstances” the two employees would have been dismissed for a valid reason.

Here to Help

ACAPMA members are reminded that ACAPMA Employment Professionals are available to assist members on employment@acapma.com.au.

HR Highlights are things to consider, implement and watch out for in your business. They are provided as general advice and you should seek further advice on your situation by calling 1300 160 270 and speaking to one of ACAPMA Employment Professionals its free for members.

Click here to apply for ACAPMA membership.

Elisha Radwanowski BCom(HRM &IR)
Executive Manager Employment and Training
ACAPMA

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