example , their behaviour caused a hazard that led to another worker being injured . However , in these situations it is also necessary to look at the severity of the breach . Was it intentional or inadvertent , what are the workplace policies on safety procedures , how much training had the employee had , and whether they were a supervisor and as such had a higher responsibility to lead by example .
What if a worker were sacked for misconduct that doesn ’ t fall into the serious misconduct category ? Can this still be a fair dismissal ? Yes it can , but again , the employer must show they have followed the principles outlined above .
Sacking for misconduct usually occurs when the employee breaches company policy or a reasonable and lawful direction of their employer . It can be a valid termination if all employees have faced these same consequences . If the employee can show that others were treated more leniently for the same misconduct , then there may be a problem . You must show that the employee was aware of the policy in place and the consequences of a breach . Some examples could be failing to wear a uniform as required , for example closed in shoes , drinking while on duty , downloading inappropriate materials on a work computer and using a mobile phone while on duty , when expressly prohibited .
Can what an employee does out of hours be a valid reason to terminate them ? Not usually , unless it can be shown that the conduct caused serious damage to the employment relationship : for example , publicly criticising your business on social media , wearing your uniform while committing a crime or driving a business vehicle dangerously .
What if the employee can no longer perform the inherent duties of their position ? This is called incapacity . An employee is expected to be able to complete the duties they were hired to do , not additional tasks they may have been given . Here again , it would depend on the nature of their incapacity . For example , is it temporary or is the employee never likely to return to work ? Generally , if it is unlikely they will ever return to work after 3 months ’ absence this might be a valid termination ; but if the incapacity is temporary , and the employee indicated that they expected to return to work , it won ’ t be seen as incapacity .
An employee may be sacked for abandoning their employment . An employee is deemed to have abandoned their employment if they stop attending their workplace , without an explanation or valid excuse . This can be proven if it is shown that a reasonable person , in the employer ’ s position , would see the employee ’ s behaviour as renouncing their employment .
An employee may be made redundant from their employment , essentially meaning that they are no longer required in their employment . A redundancy is genuine if :
• The employer no longer required the person ’ s job to be performed by anyone because of changes in the operational requirements .
• The employer has complied with any obligation in a modern award or enterprise agreement that applied to the employment to consult about the redundancy .
• The employee could not have reasonably been redeployed , either within the company they already worked for , or for an associated entity of the employer .
Even though you may have valid reasons for terminating an employee , it is best practice to follow the guidelines set out above . Always have a valid reason and proof . Always talk to your employees and warn them . Always give them an opportunity to respond and remedy the situation . Always keep records of these discussions .
Going straight to a dismissal , even if fully justified , may lead you to an unfair dismissal claim . They may not be successful , but it will cost you time and money and take you away from the important work of running your business . Seek legal advice if you are uncertain and use the resources found on the Fair Work Commission website : https :// www . fwc . gov . au .
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We are in the city : Level 5 Dixon St ., Sydney NSW 2000 02 9212 1968 administration @ sitcm . edu . au www . sitcm . edu . au
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