Terminating employees is rarely comfortable – and nor should it be. It’s not just the legal ramifications and potential costs of getting it wrong that might make one nervous, but the impact upon the employee and their family can be a burden on the conscience that’s hard to bear. 

Summary dismissal is especially tricky.  This type of termination takes place when an employee is involved in serious misconduct.  It may include a serious and imminent risk to the health and safety of another person or to the reputation or profits of the company’s business, or where an employee deliberately behaves in a way that is inconsistent with continuing their employment.

Theft, fraud, assault or refusing to carry out a lawful and reasonable instruction that is part of their job, are just few examples of serious misconduct. 

Think you’ve got it covered? So did the business owners in these five cases of summary dismissal which were held before the Fair Work Commission. Only two of these five cases were upheld by the Commission, while the other three were deemed unfair. 

Which two do you think the Fair Work Commission upheld on the grounds of serious misconduct? 

1. An employee performed burnouts in the workplace driveway, went on to intimidate a customer, and made ‘rude and aggressive gestures’ towards the Company’s security cameras. 
2. An employee was annoyed for being contacted on their rostered day off, and verbally abused their co-worker during the telephone conversation. 
3. An employee left a voicemail message containing ‘colourful language’ on a co-worker’s telephone. 
4. An employee who was a competitive rifle shooter in his spare time attended work with a high-powered weapon.  He showed it to other co-workers in the Company car park, which led to the police being called to the workplace. 
5. An employee engaged as a bouncer at a casino allowed an underage girl to enter, having only briefly inspected her Learner Driver’s Licence.

The Fair Work Commission determined that the first two cases constituted serious misconduct and the summary dismissal was upheld.

In the last three cases, the Commission found that the employer had overreacted, and that summary dismissal was not justified when the broader circumstances were considered.

Clearly, once the ‘Trump’ card of summary dismissal is on the table, there’s no going back, and if you’ve misjudged, it could work out to be costly. So it pays not to play your Presidential hand too rashly, unless you’re really sure it’s justified. 

Procedural fairness is always best practice in making sure you get things right first time.  There are a number of steps that must be taken before you make any final decisions as an employer. These include meeting with the employee and presenting all the facts and evidence surrounding the alleged misconduct; and allowing the employee to respond to the allegations, providing them with good opportunity to explain their actions. 

Procedural steps give you time to think, and understand, and can benefit all parties. All the evidence can be considered carefully and the right advice can be sought, before you make a final decision concerning the future employment of what might be a valued member of your team.

Terminating employees on any grounds – serious or not, is not to be taken lightly or done rashly.  Although you might have a level of certainty that the dismissal is well grounded, the law may not necessarily be on your side. Get the right advice first and avoid making an on-the-spot decision. You’re doing what’s right for your business - and your employees! 

A Victorian business owner learned to his cost recently about the harsh realities of social media use in the workplace - and setting rules around it. 

After being with the business for one year, a male employee was summarily dismissed by one of the business’s executives, due to an inappropriate and explicit update he posted on his Facebook feed.  The post alluded to a woman who had just been promoted having provided certain ‘favours’ to her boss in return for the new role. 

The employee in question soon amended the post, clarifying that the female employee was at his mother’s workplace — not his own.  However, not long after that he was contacted by his managing director and his employment was terminated - effective immediately.

The now ex-employee instigated unfair dismissal proceedings. His former employer argued strongly that the employee’s derogatory comments had overstepped boundaries and were not consistent with a safe working environment which is free of harassment, victimisation, or any kind of sexual abuse. 

The employee counter-claimed that he hadn’t been provided with a copy of the social media policy and was unaware of having received any warnings about social media use. Further, he alleged that the post was unrelated to his workplace, and it was posted while he was on a break at work.

The Fair Work Commission found that the employee had in fact been unfairly dismissed, and awarded him over $6,000 as compensation.

WHY

There were three reasons given for this finding. 

1. The employee had flexible working hours and it was unclear whether he was on a break at the time of making the post;
2. there was no evidence to show that the employee was provided with a copy of the social media policy, as the policy acknowledgment document was unsigned; and
3. the employer’s concerns about the language used in the post was ‘tempered by the fact that similar language appears to have been used in the workplace at various times’.
   
   

A MESSAGE FOR SMALL BUSINESS

Dealing with social media as an employer can be very difficult. It may only take a few seconds for an employee to grossly misuse social media during work time, but it takes much longer for an employer to properly respond and take appropriate action.  Incidents like this can leave a business owner with a hefty bill - and a heavy heart - when things go wrong. 

PROTECT YOUR BUSINESS

It’s vital, astute business practice and good governance for every business owner to get their house in order. 

Every business owner worth their salt wants the peace of mind that comes from knowing they are meeting procedural obligations - with best practice standards in place for when it really counts. 

Meeting your procedural obligations and making your expectations clear to employees from the outset, ensures that your business can handle workplace complexities and disputes as they arise, smartly and professionally – and in line with the law. 

SOCIAL MEDIA & THE INTERNET

With the rise of new media, ways in which employees can communicate with each other, with those outside your business, and about your business, are continually evolving. While this creates new opportunities, it also creates accountabilities.   It’s important for business owners to have a Social Media & Internet policy that applies to all employees and contractors who use social media and the internet - whether in a private or business capacity. 

CODE OF CONDUCT

If a business expects employees to always treat others with the utmost respect and courtesy, both in person and online, it’s good due diligence to set expectations with a Code of Conduct.  Having benchmarks in place, so employees understand that congenial, professional and respectful behaviour is standard workplace practice, is almost certainly going to help your business tackle the bigger issues, if they arise.

TRAINING

Ensure you take the next steps too. All employees must be made aware of these policies with adequate training on the topic of their obligations within your business.  Have them sign off - to acknowledge their understanding. And don’t let the dust settle there.  Lead by example and remind your employees at every opportunity of exactly what your workplace expectations are. 

While we know that every situation is different, and the policies you implement aren’t legal documents nor will they guarantee compliance, they will provide you with assurance - that you’re meeting your procedural obligations, and can best handle workplace complexities as they arise, smartly and professionally – and in line with the law. 

Need help with policy development and implementation?  Contact us at This email address is being protected from spambots. You need JavaScript enabled to view it. for all your best practice support needs.