Far too often we hear of cases where an employer has every reason for letting someone go but they didn’t get the process quite right and now they are defending unfair dismissal claims. Even if there is a valid reason for the dismissal, it will all be for nothing if the process is handled poorly.

In a recent FWC[1] decision, a longstanding BMW employee received $25,000 after it was found he was denied procedural fairness when sacked for serious misconduct. The employee was dismissed for breaching the company’s internet usage policy when he was caught accessing pornographic and lifestyle websites whilst at work, not once but twice. The financial controller was issued with his first and final warning when his colleague exposed that he was viewing pornographic websites. Following further investigation, the IT department found that he had once again breached the internet usage policy after ‘fashion and lifestyle’ swimsuit websites had popped up in his web history.

Two weeks later, the employee was called into a surprise meeting with his boss when he was told that he had broken an undertaking not to access inappropriate material. There was no mention of the website he was alleged to have accessed or questioning about the incident, rather he was told that he was being immediately dismissed. Whilst the FWC agreed that there was a valid reason for his dismissal, multiple procedural failures were found including:

• the employee was not told the specific reason for his dismissal in the meeting,
• he was denied the opportunity to explain himself, and
• he was given no opportunity to have a support person present.

Employers are advised to follow a fair and reasonable process prior to dismissal. The FWC will look at the process that was followed when deciding whether the dismissal was harsh, unjust or unreasonable. Do your best to avoid an unfair dismissal claim and follow these recommended steps

Before the meeting

• Let the employee know that a meeting has been scheduled to discuss their conduct or performance and that they are entitled to bring a support person.
• Ensure employees are not ambushed and are given a reasonable time to prepare a response.
• Organize a witness to be present to document the meeting.
• Keep an open mind and avoid going into the meeting with a predetermined mindset of termination. 
• Consider whether this is the employee’s first warning or whether they have already received warnings and termination of employment is possible.

At the meeting

• Explain the concerns and specifically address the alleged conduct and the improvement/correction that is required.
• Allow the employee reasonable opportunity to respond to the allegations and genuinely consider their point of view.
• Have a break in the meeting to consider the employee’s response and deliberate the outcome of the meeting.

Once the Decision has been made

• If a warning is provided ensure this is confirmed in writing and that the performance is monitored and reviewed at a later date
• If termination is the preferred option, hand the employee their termination letter outlining the reasons for the dismissal and when their employment will end.
• Ensure all statutory entitlements are paid – annual leave, long service leave, and superannuation.

 

Lessons for employers

• Where there is a valid reason for dismissal, follow the proper process to mitigate the risk of an unfair dismissal claim.
• Ensure disciplinary procedures are applied fairly and consistently to all employees.
• Review company policy and contractual provisions on underperformance and misconduct and ensure it is reiterated to employees so they are aware of your expectations.

Andrew Bland

BlandsLaw