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If your employee persistently engages in bad behaviour, you may wonder if dismissing them is permissible. However, this will depend on the type of behaviour in question. For instance, some actions employees commit may be more severe than others. Unfortunately, there is no hard and fast rule as to when you can dismiss an employee. So, this article will explore the circumstances when you can dismiss an employee for serious misconduct.
As an employer, understand your essential employment obligations with this free LegalVision factsheet.
Serious Misconduct
The Fair Work Regulations define serious misconduct as:
- wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment; and
- conduct that causes the serious and imminent risk to the health or safety of a person or the reputation, viability or profitability of the employer’s business.
Additionally, serious misconduct includes:
- theft, such as stealing company property, financial reports or intellectual property;
- fraud, including engaging in conduct to profit or advantage from it. This includes stealing insurance papers, tampering with financial documents or accessing confidential information without a good reason;
- assault, including verbally or physically abusing customers or other staff;
- sexual harassment, be it towards other staff or customers;
- intoxication at work, be it from substance use before or during hours of employment. This can alter one’s capacity to make reasonable decisions concerning safety or inhibit an employee from doing their job correctly; and
- refusal to carry out instructions consistent with their employment.
Terminating Employment
To ensure that the termination of an employee is lawful, you must follow specific steps. We outline these key steps below.
1. Establish That Serious Misconduct Has Occurred
The first step to terminating employment for serious misconduct is ensuring that the alleged events occurred. So, before making accusations, you should consider the facts and circumstances surrounding the incident and speak to any key witnesses, such as other staff.
2. Arrange a Meeting With the Employee
Once you establish that serious misconduct occurred, you should arrange a meeting with the employee. Indeed, you should tell them what the meeting is for and allow them to bring a support person to the meeting. You should also ensure that you have a witness who can confirm the events at the meeting.
At the meeting, you should explain what you know about the serious misconduct to the employee. In addition, you should present any evidence that the severe misconduct occurred, such as photographic evidence or witness statements.
3. Respond to Allegations
After meeting with the employee, you should allow the employee to respond to the allegations. They may wish to do this at the end of the meeting or have some extra time to gain their composure and provide a response in writing later.
Once you hear the employee’s side of the evidence, you should be sure to confirm your understanding of the evidence and their stance on the situation. Documentary evidence of all communications will reduce the likelihood of miscommunication and prevent any later unfair dismissal claims.
4. Make a Decision
It would help if you aimed to make a decision based on the evidence before you shortly after the meeting. However, waiting more than a few days is inappropriate before coming to a conclusion.
Furthermore, if you decide to terminate the employee after considering all the evidence, you can terminate their employment without giving them any notice. Although, you must confirm that their employment is terminated in writing and provide the reasons why you came to a decision.
Continue reading this article below the formKey Takeaways
Only in limited circumstances can you dismiss an employee for serious misconduct. The Fair Work Regulations outline these circumstances. Additionally, there are essential procedures that you must follow to ensure that the dismissal is fair. This includes:
- establishing that serious misconduct has occurred;
- arranging a meeting with the employee;
- allowing the employee to respond to the allegations against them; and
- making an informed decision.
If you need assistance understanding your rights and obligations relating to employee misconduct, our experienced employment lawyers can assist as part of our LegalVision membership. You will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 1300 544 755 or visit our membership page.
Frequently Asked Questions
The Fair Work Regulations identifies specific behaviours as serious misconduct. This includes theft, fraud, assault, sexual harassment, intoxication that impacts an employee’s work and refusal to carry out instructions consistent with employment.
Under the Fair Work Act, you can terminate an employee instantly if they engage in serious misconduct. However, this requires you to be sure that the employee did engage in serious misconduct and follow specific procedures to ensure the termination is lawful.
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