Dismissing employees – Process, Process, Process

By 12 May, 2023 No Comments
By Elizabeth McLean

The employment law team at Pragma Lawyers and the workplace relations consultants at Norfolk Workplace Consulting regularly advise businesses in respect to dismissing employees.

A question we are commonly asked, especially by small businesses, is why they are exposed to an unfair dismissal claim when they had a sound reason to dismiss an employee.

The answer is that a valid reason, no matter how strong, is only one part of the equation when the FWC assesses unfair dismissal claims. An employee could have engaged in serious misconduct but the employer will still lose the unfair dismissal case if the process followed was not sound.

Recent decisions coming out of the Fair Work Commission (FWC) are demonstrating a hard line approach where employers don’t follow a thorough and fair process before effecting a dismissal. A fair process will require the employer to closely follow their own disciplinary, investigation and termination policies.

In the recent decision of Mr Phillip Bright v Turners Civil Pty Ltd [2023] FWC 915 the FWC awarded compensation to a worker who sent his employer “vile” and “aggressive” texts and threatened to put his colleague in hospital. The employer considered the worker’s threat to be serious misconduct and dismissed him. The FWC found that the employer should have clarified the employee’s words and tried to calm him down, rather than taking the threat to warrant dismissal.

In another decision, Mark Andrew Hutton v Evolution Support Services [2023] FWC 919, the FWC heard an unfair dismissal application from a NDIS support worker who kneed an autistic child under his care in the head and called him a “little c***”

The employer investigated the worker’s conduct and substantiated that he had breached the employer’s policies and should be dismissed. They didn’t, however, notify the worker that he could access an internal appeals process which the HR Manager and Legal Counsel weren’t aware of.

Despite injuring the child, the dismissal was found to be unfair because the employer did not follow its own policies.  This finding was reached even though the worker was afforded procedural fairness through a thorough investigation in which he was interviewed twice and provided an opportunity to respond.

The FWC found the dismissal was ‘unreasonable in all the circumstances’ leading to compensation being awarded to the employee.

If you are confused about how to lawfully dismiss an employee, you are not alone.

Don’t take the risk of costly and time consuming proceedings in the FWC. Seek advice and get it right.

If you require assistance in relation to any of the information provided above, our team can provide advice to you and your business to minimise any future risk. Contact us today by emailing hello@nullpragma.law or call us on (08) 6188 3340 and request a call back from a member of our employment team.