LAW REPORT
Fair Dismissals : What is a Fair Dismissal ?
Ingrid Pagura | BA , LIB
Many of you would be familiar with the term ‘ unfair dismissal ’ and understand that it means that the dismissal was objectively considered to be harsh , unjust and unreasonable .
Hopefully , everyone now knows the steps an employer should follow to make sure they don ’ t leave themselves open for an unfair dismissal claim . Every employer must have :
• A valid reason based on the employee ’ s capacity or conduct
• Warned the employee of any issues with their capacity or conduct , and about any unsatisfactory performance before being sacked on that basis
• Given the employee an opportunity to respond to any alleged issues with their capacity or conduct
• Allowed the employee to have a support person in any dismissalrelated discussions .
There are other procedural issues as well : for example , it must have been preceded by a minimum employment period , and it cannot have been a genuine redundancy . For more information , please see Fair Work Australia Small Business Fair Dismissal Code .
I thought it would be useful to look at when a dismissal could be fair and warranted . Usually , if the employee has engaged in serious and wilful misconduct , this may be enough to validate their termination . Please note however , that each situation is unique , and the following are just some categories of misconduct . Always seek legal advice about your own circumstances .
There are three elements that usually point towards serious misconduct :
• The conduct was wilful or deliberate and inconsistent with the employment continuing .
• The conduct caused serious and imminent risk to the health or safety of a person .
• The conduct caused serious and imminent risk to the reputation , viability or profitability of the employer ' s business .
Generally , it isn ’ t enough to show that the conduct was intentional ; there also needs to be the element of harm or risk . So , what are some examples of serious misconduct ?
• Theft
• Fraud
• Assault
• Intoxication
• Refusal to carry out a lawful and reasonable instruction that is consistent with the employee ’ s employment contract .
The alleged serious misconduct must be the real reason for the sacking . The employer must have proof of the conduct , and it cannot be obtained by illegal means .
However , even in these situations , if the sacking is deemed to be a harsh response to their conduct , the employee may still have a valid case . For example , in the case of fraud , if the amount in question was only small , or was taken by mistake , going straight to a dismissal without any warning may seem harsh . In the case of theft , stealing a pen would not be seen as serious misconduct , though stealing boxes of pens for resale might .
An employee sacked for fighting in the workplace or assaulting someone , is usually deemed to have engaged in serious misconduct , as violence is never tolerated in a workplace and is a breach of the Work Health and Safety Act , in that it puts others at risk of harm . Again , there must be proof of this conduct , and that there were no extenuating circumstances that would render dismissal over it harsh . Some examples of extenuating circumstances would be acting in self-defence , a long period of service with no prior misbehaviour , or that the act was a one-off incident .
An employee may be sacked if their conduct or capacity affects the safety and welfare of other employees : for
170 | vol30 | no3 | JATMS