Summary dismissal, Serious Misconduct, Workplace Investigations Summary dismissal, Serious Misconduct, Workplace Investigations – A recent case at the Fair Work Commission (Trialonas v Steric Solutions Pty Ltd) highlighted the need for employers to understand what Summary Dismissal is, how it applies to Serious Misconduct and the importance of thorough professional workplace investigations. In this case a worker was […]

Misconduct Investigation – employers are often required to conduct investigations into the misconduct of their employees, at times the behaviour of the employee may constitute serious misconduct.

Misconduct Investigation – Serious Misconduct

Under the Fair Work Act, an employer can instantly terminate an employee’s employment, where the employee has engaged in ‘serious misconduct’.  In such circumstances, the employer will have to establish that the employee has in fact engaged in serious misconduct; and the employer will still need to follow a certain procedure to afford the employee procedural fairness

The Fair Work Regulations defines ‘serious misconduct’ as:

  • Willful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
  • Conduct that causes serious and imminent risk to:
    • The health or safety of a person; or
    • The reputation, viability or profitability of the employer’s business.

The Regulations also list the following conduct as being deemed serious misconduct:

  • The employee, in the course of the employee’s employment, engages in theft, fraud or assault;
  • The employee being intoxicated at work;
  • The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee’s contract of employment.

It is important for employees to be careful when dismissing an employee for serious misconduct to ensure that the alleged behaviour or misconduct reaches the threshold of ‘serious misconduct’.

The recent case of Dai v The Camberwell Grammar School t/a Camberwell Grammar School was an example of where this did not occur. In this case,  the applicant was employed at an independent boys’ school.  She was dismissed for failing to attend meeting concerning previous complaint against respondent.  She notified the school she could not attend the meeting on the day because she was unwell.

Commissioner Ryan considered if there was a valid reason for dismissal in that a valid reason is sound, defensible or well-founded not capricious, fanciful, spiteful or prejudiced.

Commissioner Ryan found that the dismissal harsh, unjustified and unreasonable, that the applicant had a clear reason for not attending the meeting, furthermore to characterise the non-attendance as serious misconduct was egregious.  The commissioner found that  the school imposed a completely unjust outcome on applicant, the dismissal was unfair. At the time of publication consideration was to be given to remedy.

Misconduct Investigation – Serious Misconduct – Lesson for employers

  • Investigate matters of employee misconduct thoroughly
  • Get advice if you are unsure
  • Balance any decision against all of the circumstances
  • Do not make rash decisions

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

Summary dismissal is it justified?

In matters involving serious misconduct and summary dismissal it is important for employers to understand what constitutes each and when it is appropriate to summarily dismiss. Failure to reach the requisite standard can result in a successful unfair dismissal application.

Ian Nieuwpoort South West Transit Group Pty Ltd – Fair Work Commission Perth 22 September 2017

In a recent matter before the Fair Work Commission the applicant Mr Ian Nieuwpoort was employed as bus driver. The case involved the applicant driving with expired driver’s licence, he became aware licence had expired when requested to produce it for examination.

He advised his supervisor he was in possession of expired licence and would ask wife for renewed licence at home. The applicant left message for wife and then departed depot undertaking driving duties without confirmation that his driver’s licence had been renewed.

The applicant called into meeting two days later and dismissed he claimed respondent South West Transit Group Pty Ltd had already determined would be dismissed summarily prior to meeting and respondent not interested in his explanation

The applicant’s case was that when advised that his driver’s licence appeared to not have been renewed respondent allowed applicant to complete driving duties for day, he was not contacted by respondent asking him to stop driving or return to depot during shift.

He claimed that his actions were neither wilful nor deliberate and that he acted immediately to renew driver’s licence once it was drawn to his attention that it had expired.

The respondent submitted that applicant was terminated based on valid reason and that he was provided with opportunity to respond to allegation of driving on expired driver’s licence.

The applicant submitted that Road Traffic Act 1974 (WA) (RT Act) provides an exemption to offence of driving while not authorised ‘because the licence expired’ and grace period of six months to continue driving without committing offence.

At the FWC DP Bull found that applicant’s driver’s licence no longer current until further renewed within six-month period with effect from date of renewal and rejected the argument that the Act provides for exemptions or grace period.

The Commission satisfied valid reason for dismissal in that driving motor vehicle without current driver’s licence an offence and therefore amounted to serious misconduct however it accepted that decision to drive made spur of moment while applicant was in state of shock rather than action taken designed to destroy employment relationship in wilful manner.

The FWC found that the applicant demonstrated remorse for actions and had an unblemished employment record of seven years and age taken into consideration

The Commission found despite finding of valid reason, Commission found actions of applicant did not justify summary dismissal and therefore the dismissal was unfair based on its summary nature. The Commission held compensation should be ordered in the amount of payment of five weeks wages being Mr Nieuwpoort’s entitlement based on his termination of employment with notice.

Some questions arise from this matter;

  1. Why was Mr Nieuwpoort allowed to drive the bus on the day it was discovered that his licence had expired?
  2. Why wasn’t it checked that the licence had been renewed prior to Mr Nieuwpoort taking the bus out?
  3. Why did South West Transit Group summarily dismiss Mr Nieuwpoort two days later. Summary dismissal indicates some sort of urgency is required to prevent injury or harm to the business or it’s employees
  4. Why wasn’t Mr Nieuwpoort unblemished record of service taken into account?

Summary dismissal is it justified – Lesson for employers

  1. Understand what summary dismissal and serious misconduct are and what the thresholds are – have a look at this article for more details – http://awpti.com.au/summary-dismissal-2/
  2. Don’t try and save the 4 weeks pay, it not worth it in the long run.
  3. If your managers and HR professionals are unsure get some training –  http://awpti.com.au/investigation-training/

Full text of the case – https://www.fwc.gov.au/documents/decisionssigned/html/2017fwc4887.htm

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/

 

 

 

Unfair dismissal serious misconduct workplace investigation – When considering dismissing an employee for serious misconduct, employers must bare in mind the following;

  1. Does the alleged behaviour that resulted dismissal reach the threshold of serious misconduct
  2. Have you conducted an investigation – do yo have the evidence to support the decision to terminate?
  3. Does the punishment fit the crime?

More details of another case there the issue of the punishment fitting the crime was considered by the FWC – http://awpti.com.au/punishment-must-fit-crime/

More details about summary dismissal can be found here – http://awpti.com.au/summary-dismissal-2/

Recently at the fair Work Commission, the depot manager at an Australian courier company was unfairly sacked after he was accused of being responsible for the breach of a worldwide embargo on the J.K. Rowling book Fantastic Beasts and Where to Find Them, the Fair Work Commission has found.

The FWC heard that XL Express Pty Ltd sacked the depot manager for serious misconduct last November when he was told that the delivery of embargoed J.K. Rowling books a day early had damaged the company’s reputation. XL Express blamed the Brisbane depot manager for the embargo breach, a claim he denied.

Describing the delivery of embargoed freight as “the pinnacle of its operations”, the company said a November 17, 2016 embargo on the J.K. Rowling novel was breached on November 16.

Under cross-examination, the company agreed it had not lost its contract with the book distributor and had not been financially penalised for the embargo breach. It claimed a forklift driver removed the embargo consignment from the embargo area and that another staff member removed the consignment note from an embargo file. The depot manager was accused of failing to ensure staff followed set procedures for embargo releases.

The depot manager told the FWC that the error with the sorting and handling of the consignment note happened on November 15 when he was on leave.  He said he was unaware that someone had “accessed his office, gained access to the box where the embargo labels were kept and also retrieved the con-note from the embargo con-notes and had labelled the freight”.

He said no fewer than six people had taken these actions on the day he was absent from the depot.

The commission heard that the depot manager claimed the error that resulted in the embargo breach on November 16 “was not through any fault on his part”.

The depot manager, who had been employed from May 2008 until late November last year, was dismissed on the grounds of serious misconduct after a meeting in which he was also accused of workplace bullying. He said it was the first time the allegations had been put to him. He was also accused of wrongly claiming he had received training in the company’s anti-bullying procedures.

Fair Work Commission deputy president Ingrid Asbury’s judgment said XL Express had no documents and called no evidence to support the bullying allegations.

The depot manager told the commission he was not paid his long service leave entitlements because his job was terminated for misconduct.

In finding the dismissal was unfair, Deputy President Asbury ordered XL Express to pay the sacked employee $48,432 in wages, less tax and $6555 in superannuation contributions.

The commission found that although it was not a valid reason for his dismissal, the depot manager’s responsibility for depot operations “meant that he had a role in the series of events that led to the embargo breach”.

It said the dismissal was harsh because it was disproportionate to the misconduct in relation to the embargo breach.

It is important to consider the decision in Rode v Burwood Mitsubishi where is was held a valid reason must be “defensible or justifiable on objective analysis of relevant facts”.

 

Summary dismissal – Do you have the grounds

In light of the  XL Express Pty Ltd decision at the Fair Work Commission, I think it’s time to review Summary Dismissal. (More about XL Express here – http://awpti.com.au/unfair-dismissal-serious-misconduct-workplace-investigation/

Summary dismissal is dismissal without notice. It does not require advance notice to the employee and wages are only paid to the time of dismissal. An employer has a legal right to summarily dismiss an employee without notice for serious misconduct or other conduct which justifies such dismissal.

Employers should always think very carefully and thoroughly consider the options before making a decision to immediately or “summarily” dismiss an employee. For summary dismissal to be lawful there must have been a breach by the employee of either an express or implied term of the contract of employment that is serious enough to necessitate an employer to undertake an action of summary dismissal.

I recommend before summary dismissal action is taken employers do the following:

  • Investigate the matter carefully to ensure that you have enough information and evidence upon which to make your decision. If the presence of the subject employee in the workplace causes concern consider suspending them until the conclusion of the investigation.
  • Review the employee’s record. Does this person have a long history with the company? Is this person a first or repeat offender? These are matters that could be taken into account.

Summary dismissal of a long standing employee with a good or unblemished record can be problematic.
Your options should be carefully considered

  • Review your options. Would dismissal with notice be a better option? What are other options – demotion, counselling or training?
  • Don’t allow the fact that you may save some money by summarily dismissing an employee to affect your judgement. This course of action could be more costly in the long run.
  • Resist the temptation to ‘make an example’ of instances of employee negligence with summary dismissal. It is always best to ensure that disciplinary action is fair and thorough and that the outcome is proportionate to the conduct that has occurred.

Here are some cases that highlight differing views of summary dismissal:

In Bruce v AWB Ltd [2000] FCA, the Federal Court of Australia stated that mere misconduct is not considered as sufficient grounds to warrant immediate dismissal. For a summary dismissal to be lawful the employee’s conduct must be judged serious enough that summary dismissal is the only option.

In Concut Pty Ltd v Worrell [2000] HCA 64, Kirby J stated that it is “only in exceptional circumstances” that an employer is entitled to dismiss an employee summarily. His Honour went on to state that generally, acts of dishonesty of similar conduct that destroys the mutual trust between the employer and employee fall within the class of conduct which would allow a lawful summary dismissal.

In Smith v Aussie Waste Management Pty Ltd [2015] FWC 1044 (Smith), the FWC ruled that swearing at a managing director during a heated phone call was not sufficient cause for summary dismissal. The FWC ruled that the conduct was not ‘sufficiently insubordinate’ for him to be dismissed because the conversation was not overheard by other employees, meaning it had not undermined the managing director’s authority in the workplace.

On the other hand:

In John Pinawin t/a RoseVi Hair Face.Body v Edwin Domingo [2012] FWAFB 1359 the Full Bench accepted that the summary dismissal of a hairdresser whose work performance was adversely affected by his drug use was fair, but warned the same conclusion would not necessarily be reached in all cases of out-of-hours misconduct – an issue on which the Full Bench made some interesting observations that pertain to all employers.

In Lloyd & Co Pty Ltd v Shuttle ([2016] FWCFB 144) the employee had sent a series of emails to other staff members that were highly critical and disparaging of the managing director.

The Commission ruled that the managing director’s feelings of betrayal as a result of the employee’s personal hostility and disloyalty were reasonably held. The managing director had direct evidence of disloyalty in the form of the emails

As you can see summary dismissal is not cut and dry, I recommend careful and expert investigation of misconduct incidents that could result in summary dismissal.

The peace of mind of getting it right outweighs the cost of an expert investigation.

This is general information only. It does not replace advice from a qualified workplace investigator in your state or territory.  It is recommended that should you encounter complaints in the workplace that you seek advice from a suitably qualified and experienced workplace investigator.

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations

www.awpti.com.au
http://awpti.com.au/investigations/
http://awpti.com.au/training/